Judge: Kevin C. Brazile, Case: 23STCV07625, Date: 2023-12-07 Tentative Ruling

Hearing Date: February 9, 2024

Case Name: Hardin v. County of Los Angeles, et al.

Case No.: 22STCV33746

Matter: Motion to Set Aside Judgment 

Moving Party: Plaintiff Brison Hardin

Responding Party: Defendant County of Los Angeles

Notice: OK

Ruling: The Motion to Set Aside Judgment is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On April 13, 2023, Plaintiff Brison Hardin filed the operative First Amended Complaint (“FAC”) against the County of Los Angeles for FEHA discrimination, FEHA retaliation, and FEHA failure to prevent discrimination and retaliation.  

On June 16, 2023, the Court sustained the County’s demurrer to the FAC because Plaintiff had not pleaded an adverse employment action—specifically, the allegations as to a constructive discharge were deficient.  

The Court ruled that “Plaintiff merely alleges that (1) on two occasions comments were made that made it seem as though Defendant did not approve of him taking disability leave; (2) Plaintiff was required to contact Defendant on a weekly basis to update it on a return date; (3) Plaintiff was asked to return to work sooner; and (4) Plaintiff received a letter indicating that he had limited leave time, when there was a prior understanding of unlimited time.  Thereafter, but before his leave expired, Plaintiff resigned. [¶]  Respectfully, this does not plead a constructive discharge or any other adverse employment action.  (Cf. Holmes v. Petrovich Dev. Co., LLC (2011) 191 Cal. App. 4th 1047, 1062–63 [‘Holmes argues that she was subjected to negative comments and accusations about her pregnancy, followed by Petrovich's retaliatory conduct when she told him she planned to exercise her leave rights—he retaliated by forwarding her sensitive personal information to others in the office, who had no reason to know about her prior miscarriages, amniocentesis, and potential termination of her pregnancy.’].)”

In its tentative ruling, the Court stated that although it was “inclined to deny leave to amend, the court will hear oral arguments on whether 30 days leave to amend should be granted.”

There was no appearance by Plaintiff’s counsel at the demurrer hearing; therefore, the Court sustained the subject demurrer without leave to amend.

On November 17, 2023, the Court entered a judgment of dismissal.

On December 15, 2023, Plaintiff filed the instant Motion seeking to set aside the judgment of dismissal in this action under the mandatory and discretionary provisions of Code Civ. Proc. § 473(b).  Plaintiff’s former counsel indicates she had technical difficulties attending the demurrer hearing and that she would have presented arguments at that hearing supporting an amended pleading.  

The mandatory provision of Code Civ. Proc. § 473(b) provides, “Notwithstanding any other requirements of this section, the court shall, 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

For the mandatory provision of Code Civ. Proc. § 473(b) to apply, the dismissal must “be the procedural equivalent of [a] default[] . . . .”  (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 618.)  Examples of dismissals which are the equivalent of a default are dismissals resulting from counsel’s failure to respond to discovery such that terminating sanctions are imposed (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 719), counsel’s failure to oppose a dismissal motion (Bernasconi Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082), and counsel’s failure to tender fees for transfer of venue.  (Gee v. Estate of Jewett (2016) 6 Cal.App.5th 477, 491.)

The Court has considered this issue carefully and finds that, particularly under the policy of hearing matters on their merits, former counsel’s failure to appear was in fact the cause of the dismissal in this matter and former counsel has submitted a valid affidavit of attorney fault pertaining to technical difficulties that precluded her from attending the demurrer hearing.  Had former counsel appeared and made the arguments she asserted in her email to this department, the Court, under the very liberal standard of allowing amendments in this state, would have allowed another iteration of the complaint.  

Therefore, the Motion to Set Aside Judgment is granted.  (Code Civ. Proc. § 473(b).)  An amended pleading must be filed with the Court within ten days. 

Defendant requests $13,200 in attorney’s fees and $62.50 in costs.

Code Civ. Proc. § 473(b) states in relevant part, “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

The Court, in the exercise of its discretion, directs former counsel, Nathalie Meza Contreras, to pay Defendant $1,500 in fees and costs.  

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.