LIDVIA P MINERO VS COBALT CONSTRUCTION COMPANY ET AL

Tentative Rulings

Case Number: BC676494    Hearing Date: September 02, 2020    Dept: 48

[TENTATIVE] ORDER RE: REQUEST FOR AN ORDER APPORTIONING WRONGFUL DEATH SETTLEMENT

On September 20, 2017, Plaintiff Lidvia P. Minero (“Plaintiff”) filed this action arising from the wrongful death of her son, Oswaldo Ernesto Mineros Jr. (“Oswaldo Jr.”). Plaintiff named Oswaldo E. Mineros (“Oswaldo Sr.”), Oswaldo Jr.’s father, as a nominal defendant. On March 4, 2019, the Court entered default against Oswaldo Sr.

In July 2020, Plaintiff and remaining defendants Cobalt Construction Company, Essey Construction Company, Inc., and Steel City Scaffold, Inc. (collectively, “Defendants”) reached a settlement. On August 4, 2020, Plaintiff filed an ex parte application for order apportioning wrongful death settlement. Plaintiff seeks an order apportioning 100 percent of the proceeds of the settlement to Plaintiff, excluding all others and specifically excluding Oswaldo Sr.

On August 6, 2020, the Court denied the ex parte application, finding no exigent circumstances or good cause to decide the matter on an ex parte basis. The Court ordered Plaintiff to file evidence of the status of California Contractors Network’s lien and to give notice. California Contractors Network filed a notice of release of lien on August 6, 2020, releasing Plaintiff from any and all liens as they relate to workers’ compensation benefits due and payable as a result of the accident upon which this action is based.

When the decedent had no surviving issue, whoever would be entitled to the property of the decedent by intestate succession may bring an action for wrongful death. (Code Civ. Proc., § 377.60.) The court shall determine the respective rights in a wrongful death award of all persons entitled to assert the cause of action. (Code Civ. Proc., § 377.61.) Damages for wrongful death are measured by the financial benefits the heirs received at the time of the decedent’s death, the benefits reasonably expected in the future, and the monetary equivalent of the loss of comfort, society, and protection. (Corder v. Corder (2007) 41 Cal.4th 644, 661.)

Plaintiff declares that she is the mother of Oswaldo Jr., and Oswaldo Sr. is Oswaldo Jr.’s father. (Minero Decl. ¶¶ 4, 11.) Oswaldo Jr. never married, did not have a domestic partner, and did not have children. (Id. at ¶ 10.) Therefore, Plaintiff and Oswaldo Sr. would be entitled to Oswaldo Jr.’s property through intestate succession. (Prob. Code, § 6402, subds. (a)-(b).) Plaintiff named Oswaldo Sr. as a nominal defendant (see Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808), and he defaulted on March 4, 2019.

Plaintiff declares that Oswaldo Sr. left her and Oswaldo Jr. in September 1995, when Oswaldo Jr. was three months old, and never had anything to do with them since then. (Minero Decl. ¶ 14.) Oswaldo Sr. “completely abandoned” Plaintiff and Oswaldo Jr., and as far as Plaintiff is aware, he never saw or spoke to Oswaldo Jr. again after he left in 1995. (Id. at ¶ 17.) Plaintiff raised Oswaldo Jr. alone, with the help of her immediate family, and Oswaldo Sr. never came to any of Oswaldo Jr.’s birthday parties, school events, religious ceremonies, graduations, or his funeral. (Id. at ¶¶ 15-16, 18.) Over a year ago, Oswaldo Sr. owed over forty thousand dollars in child support payment. (Id. at ¶. 19.)

Plaintiff and Oswaldo Jr. lived with Plaintiff’s mother and stepfather, sharing the rent and household expenses. (Id. at ¶¶ 21-22.) Plaintiff and Oswaldo Jr. were never apart for an extended period of time, except for a four-week trip Oswaldo Jr. took to visit extended family and a shorter visit with relatives. (Id. at ¶ 23.) Plaintiff and Oswaldo Jr. shared household chores, and he helped Plaintiff commute to work when they shared a vehicle. (Id. at ¶¶ 27-28.) Plaintiff looked forward to their future and anticipated helping him raise his children. (Id. at ¶ 31.) Plaintiff’s whole life revolved around Oswaldo Jr., and she visits his grave several times a week and often decorates it with flowers. (Id. at ¶ 30, 33-34.)

Accordingly, the Court determines that Plaintiff is entitled to 100 percent of the proceeds in this wrongful death action, and Oswaldo Sr. is entitled to none of the proceeds.

The request for an order apportioning wrongful death settlement is GRANTED. Plaintiff Lidvia P. Minero is apportioned 100 percent of the proceeds from the settlement with defendants Cobalt Construction Company, Essey Construction Company, Inc., and Steel City Scaffold, Inc., and all others including Oswaldo E. Mineros are excluded.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC676494    Hearing Date: December 18, 2019    Dept: 48

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant 6^th Virgil LLC

RESPONDING PARTY(S): Plaintiff Lidvia P. Minero (dismissal of Defendant)

PROOF OF SERVICE:

• Correct Address: Yes
• 75/80 (CCP § 437c(a): OK. Served by personal service on October 4, 2019 (75 days)

• Motion for summary judgment is placed OFF-CALENDAR AS MOOT due to dismissal of Defendant with prejudice.

  ANALYSIS

  Motion for Summary Judgment

  Per CCP § 437c(b), an opposition to a motion for summary judgment is due 14 days before the hearing date. On December 2, 2019, Plaintiff filed a dismissal with prejudice as to moving Defendant 6^th Virgil LLC (Doe 1), which is 16 days prior to the hearing date.

  Even if the dismissal was without prejudice, because it was filed before the opposition was due, the Court would lack jurisdiction to rule upon the motion. Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1170-74.

  Accordingly, the motion for summary judgment is placed OFF-CALENDAR AS MOOT.