Motion to Set Aside Default
In light of the ruling, the court also VACATES the defaults entered against Defendants COLIBRI FAMILY PROPERTIES LLC and JUAN JOSE GONZALEZ aka JAY GONZALEZ (ROAs 46 and 47).
Plaintiff SHALL separately file and serve the Proposed FAC (attached as Exhibit 3 to the Khiterer Declaration) within five court days.
Plaintiff to give notice.
5 Elias vs. Elias Motion to Set Aside Default
The court DENIES Defendant JAMES VOLPE’s Motion to Set Aside Default.
Defendant Volpe moves to set aside the default entered on 3/30/23 (ROA 11) pursuant the court’s inherent powers under Section 128 of the Code of Civil Procedure.
Defendant Volpe fails to articulate how it would be appropriate or proper for this court to grant relief under its inherent powers from a default that was entered more than three years ago.
Notably, this court denied Defendant Volpe’s prior attempt to set aside the default, finding that Defendant lacked diligence in moving to set aside default, among other things. (ROA 232.) Attempts to piggyback on meritorious arguments made by another defendant for whom Plaintiff voluntarily chose not to pursue further is not sufficient ground for the relief requested. The court notes, however, that default judgment may be inappropriate against a defaulting defendant where several defendants are sued on a joint liability basis and one of them answers asserting defenses which would exonerate the defaulting defendant from such liability. (See, e.g., Adams Mfg. & Engineering Co. v.
Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655 [“The rule is definitely established that where there are two or more defendants and the liability of one is dependent upon that of the other the default of one of them does not preclude his having the benefit of his
codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his favor along with the successful contesting defendant.”].)
In the court’s 5/5/26 minute order, the court stated it would take Plaintiff’s DAVID ELIAS’s request for a default judgment under submission once a ruling is made on Defendant JAMES VOLPE’s motion to set aside default. (See 5/5/26 Minute Order.) As such, Plaintiff’s request for a default judgment is now deemed under submission.
Plaintiff to give notice.
7 Wang vs. Bui Motion to Tax Costs
The matter was continued from 7/10/26 to give Defendants an opportunity to file a supplemental declaration and allowing Plaintiffs to respond as well.
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The court has considered the Sur-Reply filed by Defendants on 7/16/26 (ROA 563) and Plaintiff’s Sur Sur-Reply filed on 7/21/26 (ROA 567).
The court DENIES, in its entirety, Plaintiffs JIN WANG, M.D. and CHIRAG VAIDYA, M.D.’s motion to tax costs.
Re Deposition Costs
First, Plaintiffs argues the court should tax the charge of $1,351.25 for a claimed deposition no-show on 4/14/22.
The last page of Defendants’ Exhibit List, which was belatedly filed on 7/1/26, shows a First Legal Invoice for charges related to a certificate of non-appearance, with the charges totaling $1,351.25. In support of Plaintiffs’ Reply, counsel for Plaintiffs declares, “According to my email records, I noted that, on April 14, 2022, at 9:29 am, I sent an email to Mr. Bui to the effect that no link had been received from his office in order to access the remote deposition that had been set for April 14, 2022. I also noted that Dr. Vaidya had cleared his calendar for the deposition.
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