Judge Joel L. Lofton, Case Number: 23AHCV01862, Date: 2024-01-17 Tentative Ruling

CASE: CAVANAUGH THOMPSON, v. CITY OF PASADENA, a Municipal Corporation; PASADENA POLICE DEPARTMENT, a public safety department; and DOES 1 through 10, inclusive.

Defendants move to set aside default entered against the City of Pasadena on November 14, 2023, and the Pasadena Police Department on November 16, 2023.

This case arises out of Cavanaugh Thompson’s claim that he was unlawfully terminated from his employment with the Pasadena Police Department and subject to discrimination. Plaintiff filed this complaint on August 15, 2023, alleging seven causes of action for (1) relief for violation of POBRA, Government Code section 3309.5, (2) whistleblower retaliation, Labor Code section 1102.5, (3) violation of due process, (4) violation of MMBA, (5) racial discrimination, (6) failure to prevent discrimination, and (7) retaliation under FEHA.

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The mandatory relief provision provides that a court shall grant relief “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. section 473, subd. (b).)

Defendants move to set aside the entry of default. Plaintiff filed his initial complaint on August 15, 2023. The complaint was served on October 6, 2023. Default was entered against the City of Pasadena on November 14, 2023. Default was entered against the Pasadena Police Department on November 16, 2023. Defendants argue that the defaults entered against them are void.[1]

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc. § 473, subd. (d).)

Pursuant to Code of Civil Procedure section 430.40, subdivision (a), Defendants had 30 days from October 6, 2023, to demur to the complaint. However, provide that they filed a declaration automatically extending the time to respond.

“If the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension.” (Code Civ. Proc. § 430.41.)

Defendants provide that they attempted to meet and confer and agree to an extension on October 31, 2023. (Navarro Decl. ¶ 5.) Defendants provide that Plaintiff’s counsel responded on November 3, 2023, stating he only agreed to the extension if Defendants answered without a demurrer. (Id. ¶ 6.) Plaintiff’s response on November 3, 2023, was within 5 days of the date Defendants’ responsive pleading was due. Defendants also provide that the purpose of the declaration was to obtain the automatic extension. (Id. ¶ 8.) Thus, the parties were not able to meet and confer at least 5 days before the deadline, and Defendant submitted the appropriate declaration.

Interestingly, Plaintiff disregarded this declaration and sought an entry of default against both Defendants despite the fact that Code of Civil Procedure section 430.41, provides that “the demurring party shall not be subject to default during the period of the extension.” In opposition Plaintiff argues that the declaration was deficient but does not state how or why Defendants’ attempt to obtain the automatic extension was insufficient.

Thus, because default was entered against both Defendants during the automatic extension, the entries of default are void. Defendants’ motion to set aside the entry of default against the City of Pasadena and the PDD is granted pursuant to Code of Civil Procedure section 473, subdivision (d).

Parties who intend to submit on this tentative must send an email to the court indicating their

[1] The court recognizes Defendants’ contention that PDD is not a separate legal entity and is thus not a separate Defendant. However, since two separate defaults were entered, the court will refer to the Defendants as plural defendants for the purposes of the present motion.