Judge: Joel L. Lofton, Case: 23AHCV01866, Date: 2024-01-22 Tentative Ruling

Case Number: 23AHCV01866    Hearing Date: January 22, 2024    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      January 22, 2024                                             TRIAL DATE: No date set.

CASE:                         ANTHONY RUSSO v. CITY OF PASADENA, a municipal corporation; PASADENA POLICE DEPARTMENT, a public safety department  

CASE NO.:                 23AHCV01866

MOTION TO SET ASIDE DEFAULT

MOVING PARTY:               Defendant City of Pasadena

RESPONDING PARTY:      Plaintiff Anthony Russo

SERVICE:                              Filed December 18, 2023

OPPOSITION:                       Filed January 5, 2024

REPLY:                                   Filed January 12, 2024

RELIEF REQUESTED

             Defendants move to set the entry of default.  

BACKGROUND

             This case arises out of Plaintiff Anthony Russo’s claim that he wrongfully received adverse employment actions in his position as a Police Lieutenant with the City of Pasadena Police Department. Plaintiff filed this complaint on August 16, 2023, alleging four 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, and (4) violation of Meyers-Milias-Brown Act, Government Code section 3500, et seq.

TENTATIVE RULING

            Defendants’ motion to set aside the entry of default is GRANTED.

LEGAL STANDARD

“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).)

DISCUSSION

            Defendants move to set aside the entry of default. Plaintiff filed this initial complaint on August 16, 2023. Plaintiff filed proofs of service that stated that Defendants were served on October 5, 2023. On November 14, 2023, Default was entered against the City of Pasadena. On November 16, 2023, default was entered against the Pasadena Police Department.

            Defendants argue that Plaintiff improperly sought default because an automatic extension was in place.

“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).)

“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.)

On November 6, 2023, Defendants filed a declaration for the purpose of seeking an extension pursuant to Code of Civil Procedure section 430.41. Code of Civil Procedure section 430.40, subdivision (a), provides that the demurer must be filed within 30 days after service. The proofs of service provide that Defendants were served on October 5, 2023. Thus, Defendants were required to demurer, or in the alternative filed and serve an extension declaration, by November 4, 2023. However, November 4, 2023, is a Saturday. California Rules of Court, Rule 1.10, subdivision (a), provides: “The time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or other legal holiday, and then it is also excluded.” Defendants declaration was timely.

In opposition, Plaintiff argues that the extension declaration is insufficient. Plaintiff’s arguments are unavailing. On November 6, 2023, Defendant filed a declaration that provided that Defendant sought an extension from Plaintiff on October 31, 2023, because counsel had recently been retained for this matter. (Tsai Decl. ¶ 4.) Notice of association of counsel was filed on November 2, 2023. (Id. ¶ 5.) On November 3, 2023, Plaintiff’s counsel responded that the extension would be granted if Defendants would file only an answer. (Id. ¶ 5.) The facts presented in the declaration make it clear that the parties were not able to meet and confer at least 5 days before the date the demurrer was due. Thus, Plaintiff was entitled to the automatic extension.

Plaintiff’s two requests for entry of default were improper because they were made within the extension period. Further, “the demurring party shall not be subject to default during the period of the extension.” (Code Civ. Proc. § 430.41.) Thus, the defaults entered against Defendants are void.

CONCLUSION

            Defendants’ motion to set aside the entry of default is GRANTED.

            Case Management Conference to be set on April 22, 2024, at 8:30 am

            The Demurrer that is currently scheduled for July 16, 2024, will be advanced to

            to April 22, 2024, at 8:30

            Moving Party to provide notice.

Dated:   January 22, 2024                                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

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

intention to submit.  alhdeptx@lacourt.org