Judge Edward B. Moreton, Jr., Case Number: 20SMCV01690, Date: 2024-05-14 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 20SMCV01690, Date: 2024-05-14 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

Plaintiff Adam J. Tenser sued the County of Los Angeles (“County”) and six individual employees of the county (“County Employees”)[1] (collectively “Defendants”) following events surrounding the arrest and trial of Plaintiff’s client, Blake Leibel, for murder.

The complaint alleges the following facts: Plaintiff is an entertainment lawyer who represents Leibel. On May 26, 2016, Leibel was arrested for the murder of Iana Kasian. Plaintiff met with Leibel the following day at the county’s Twin Towers Correctional Facility, where Leibel asked Plaintiff to find him criminal counsel. Plaintiff did so and attempted to visit Leibel with criminal counsel on June 7, 2016. However, they were denied attorney-client visitation.

Plaintiff attended a criminal hearing in late July 2016 with a criminal attorney and attempted to substitute in as counsel but was denied. Plaintiff was denied attorney-client visits with Leibel beginning in August 2016. He sought relief through Defendant Jollif, the supervisor of the Twin Towers legal intake unit, but Jollif denied Plaintiff’s request because Plaintiff was not Leibel’s attorney of record and did not have a court order authorizing visitation. Leibel signed a notarized agreement evidencing Plaintiff’s representation, but Plaintiff was still denied a confidential attorney-client visitation.

In late August, Plaintiff contacted Defendant Miller of the county counsel office, but Miller also denied Plaintiff’s request to visit Leibel absent a court order. Plaintiff was unable to provide criminal counsel for Leibel, who instead used a public defender. Plaintiff asserts that he was denied access to confidential attorney-client communications with Leibel from August 1, 2016, through June 28, 2018, the date of Leibel’s sentencing.

Leibel’s trial began in early June 2018, and Plaintiff attended, sitting in the gallery. Leibel requested Plaintiff attend the trial and inform him of the civil consequences. Prosecutors Mokayef and Silverman drew attention to Plaintiff’s presence. The attention was enough that one juror apparently asked about Plaintiff during voir dire.

On June 13, 2018, trial was adjourned for the lunch break, and due to issues with the elevator, the hallway outside the courtroom became packed with members of the press, jurors, witnesses, and counsel. Defendants Silverman, Mokayef, and Martindale were engaged in a boisterous conversation between themselves and witnesses, including the victim’s mother and Martindale’s partner, detective William Cotter. The group was sharing their opinions of the morning’s testimony and its effect on the case, and celebrating their apparent progress towards conviction of Leibel. The discussion was taking place within audible distance to the members of the press and the jury.

Plaintiff stood equal distance from the group as the nearest juror, to ascertain what the jurors were hearing. Detective Cotter turned to Plaintiff, and Plaintiff said, “Your conduct is highly inappropriate in front of the jury.” Detective Cotter replied, “Mr. Tenser I’m not interested in your opinion.” Silverman then lashed out yelling, “This is none of your business.” Plaintiff replied, “It is my business. I’m an officer of this court and your opinion does not matter.” Silverman and Mokayef then called Plaintiff a “stalker” in the presence of the jury, witnesses and the press. Mokayef later told the judge that Plaintiff was “basically stalking” prosecutors, while Silverman added that Plaintiff should known better as an attorney and either should act professionally or be ordered out of the building. Mokayef later solicited a libelous e-mail from Ryan, a prosecution witness, alleging that Plaintiff had accosted Ryan in the parking lot of the courthouse. On June 14, 2018, after the lunch break, the same juror that had inquired about appellant during voir dire expressed fear of appellant and was excused from jury duty.

On June 18, 2018, the court cited Plaintiff for contempt for following a juror in his car, which Plaintiff denied, and ordered him to leave the courthouse for the remainder of the trial. On June 20, 2018, Martindale executed a declaration that Plaintiff claims mischaracterized the events described therein. The declaration described Martindale witnessing repeated ethical and professional lapses in Plaintiff’s behavior during the trial.

This action ensued. The operative complaint alleges claims for (1) intentional interference with contractual relations, (2) defamation, (3) negligence per se, and (4) public entity liability.

In July 2021, the trial court sustained without leave to amend the County’s demurrer to the first amended complaint on the ground that Plaintiff failed to present a timely claim pursuant to the Government Claims Act (Gov. Code, § 810 et seq.). The County was dismissed from the lawsuit. In July 2022, the trial court sustained without leave to amend the County Employees’ demurrer on the same ground. A judgment of dismissal was subsequently entered. Tenser separately appealed from the two dismissals. The Court of Appeals affirmed the judgment.

This hearing is on Plaintiffs’ motion to vacate the order of dismissal pursuant to Code Civ. Proc. §663. Plaintiff argues that the Court (1) ignored the legal standard for pleading pursuant to Code Civ. Proc. §459; (2) applied the summary judgment standard on a demurrer; (3) failed to take judicial notice of official government acts of the County making false assertions of fact; and (4) denied Plaintiff of procedural due process.

Section 663 empowers the trial court to set aside a judgment. (Code Civ. Proc. § 663.) A section 663 motion to vacate may only be used to set aside a judgment based on a decision of the trial court in a bench trial or a jury’s special verdict. (Code Civ. Proc. § 663; Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14.) Two grounds warrant a motion to vacate a judgment: (1) an incorrect or erroneous legal basis for the decision; and (2) a judgment or decree not consistent with or not supported by the special verdict. (Code Civ. Proc. § 663, subds. 1 and 2; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181.)

The judgment Plaintiff seeks to set aside here was not based on a decision of the trial court in a bench trial or a jury’s special verdict. It was based on the Court’s decision on demurrers, which notably were affirmed by the Court of Appeals. Accordingly, Plaintiff cannot prevail on a motion to seek to set aside the judgment pursuant to § 663.

Moreover, pursuant to Code Civ. Proc. § 663, a motion setting aside a judgment must be filed “[w]ithin 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” Here, notices of entry of the judgments of dismissals as to the County and the individual County defendants were served on Plaintiff on September 20, 2022 and December 12, 2022, respectively. Tenser therefore had until October 7, 2022 and December 29, 2022, respectively, to file a motion under § 663. Tenser’s motion was filed on April 4, 2024. It is, therefore, untimely.

Further, Code Civ. Proc. § 663a subd. (b) states that “the power of the court to rule on a motion to set aside and vacate judgment shall expire 75 days from the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or 75 days after service upon the moving party by any party of written notice of entry of judgment, whichever is earlier.” Here again, notices of entry of the judgments of dismissals as to the County and the individual County defendants were served on September 20, 2022 and December 12, 2022, respectively. Therefore, this Court lost the power to rule on any motion under § 663 as of December 6, 2022 as to the County and as of February 28, 2023, as to the individual County defendants.

Based on the foregoing, the Court DENIES Plaintiff’s motion to vacate dismissal under Code Civ. Proc. §663.

[1] The county employees are Robert Joshua Ryan, Beth Silverman, Tannaz Mokayef, Robert Martindale, Maurice Jollif, and Elizabeth Dumais Miller. Silverman and Mokayef were sued individually and in their capacities as deputy district attorneys for the Los Angeles County District Attorney’s Office. Martindale and Jollif were sued individually and in their capacities as employees of the Los Angeles County Sheriff’s Department (LASD). Miller was sued individually and in her capacity as county counsel. Ryan was a prosecution witness in the trial of Blake Leibel.