Judge: Michael E. Whitaker, Case: 18STCV02843, Date: 2023-02-02 Tentative Ruling

Case Number: 18STCV02843    Hearing Date: February 2, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

NOTE:  2 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

              Plaintiff Mario Abernathy (Plaintiff), a self-represented litigant, moves to extend the motion filing cutoff date in the underlying action.  Plaintiff requests the following relief in the instant motion:

Plaintiff will need to file other Motions including a Motion for Order imposing sanctions Against defendant Allison Brunell, et. al and their lawyer, Brian Plessala. Plaintiff cannot have enough time concerning the 21 Day Safe Harbor period rule, Unless the court extends the cut off time for the filing of motions in this action. Plaintiff would suffer prejudice and irreparable harm, unless the court grants plaintiff Relief. As clearly stated, for the foregoing reasons, Plaintiff requests that the court extend the cut off time for the filing of Motions in this action.

(Motion to Extend Motion Filing Cut Off Date, p. 13.)

However, Plaintiff fails to state with specificity the motion filing cutoff date he seeks to have extended, and the source of that cutoff date.  Moreover, Plaintiff does not provide the authority upon which the Court may extend such cutoff date.  In short, the Court is unclear about the nature of Plaintiff’s motion and cannot assess the necessity or justification for the requested extension.  Accordingly, the Court denies Plaintiff’s motion without prejudice.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING - NO. 2

MOTION

              Plaintiff Mario Abernathy (Plaintiff), a self-represented litigant, moves to set aside the Judgment of Dismissal (Judgment) and the Amended Minute Order (Order) entered on September 9, 2022 under Code of Civil Procedure sections 473, subdivisions (b) and (d).  Defendants Allison Brunell, Kenneth Brunell, and Maria Brunell (collectively, Defendants) oppose the motion.  

ANALYSIS

1. SECTION 473, SUBDIVISION (b)

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

            First, the Judgment and Order were entered on September 9, 2022.  Plaintiff then filed his motion seeking to set aside the Judgment and Order on November 4, 2022 which the Court finds to be timely under Section 473.

            Second, in reading Plaintiff’s declaration filed in support of the motion, Plaintiff does not establish how the Judgment and Order were entered against him because of his mistake, inadvertence, surprise, or excusable neglect.  Moreover, Plaintiff does not seem to challenge the Court’s underlying rulings, which gave rise to the entry of the Judgment and Order, or does not seek to relitigate the issues related to the Judgment and Order.  In fact, the Court notes that Plaintiff opposed the underlying demurrer which the Court sustained without leave to amend on May 25, 2022, and thereafter Plaintiff filed a motion for reconsideration of the May 25, 2022 ruling, which the Court denied on July 7, 2022.  On the other hand, Plaintiff raises other proceedings, e.g., Motion for Attorneys’ Fees, Motion to Strike, Notice of Related Case, Motion to Consolidate and Discovery, which he claims are fraught with errors.  But such proceedings have no direct bearing on Judgment and Order and Plaintiff has not established otherwise. 

            Furthermore, the Court addresses how and why the Order was issued, correcting the initial Minute Order entered on May 25, 2022.  The Court, in considering Plaintiff’s motion for reconsideration, discovered that there were two typographical errors in the May 25, 2022 Minute Order.  The phrase “sustains in part” in reference to the second and third causes of action was erroneous as evident by the Court’s analysis of the issues concerning those causes of action.  (See Minute Order entered May 25, 2022, p. 4.).  Instead, the phrase “sustains” should have been employed.  And with that correction, the Court revised the Conclusion and Order section to reflect that the demurrer was sustained in full, instead of in part.  (See Minute Order entered May  25, 2022, p. 8.) 

1. SECTION 473, SUBDIVISION (d)

Per Code of Civil Procedure section 473, subdivision (d), “[t]he 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.” 

In reviewing Plaintiff’s declaration in conjunction with the procedural history of the consolidated action as set forth above, Plaintiff fails to establish that he is entitled to relief under Section 473, subdivision (d).  First, Plaintiff does not demonstrate that there are clerical mistakes in the Judgment or Order.  Second, Plaintiff does not illustrate how the Judgment or Order are void as a matter of law. 

Notwithstanding, under Code of Civil Procedure section 581, subdivision (f) which provides:  “The court may dismiss the complaint as to that defendant when (1) Except where Section applies, after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal.”  Here, the Court finds that Defendants did not move for the dismissal based upon the Court’s ruling on the underlying demurrer.  However, the Court finds that if such motion for dismissal was made under Section 581, the Court would have granted the motion and entered an order dismissing the second amended complaint in Case No. 20STCV08478.  Because Defendants did not comply with Section 581, the Court determines that the Judgment is voidable as opposed to void, because the Court had the authority to enter the Judgment in light of the prior rulings of the Court.  Yet Section 473, subdivision (d) applies to void, not voidable judgments, and therefore, cannot serve as the basis for the relief sought by Plaintiff. 

CONCLUSION AND ORDER

            Therefore, the Court denies Plaintiff’s motion to set aside the Judgement of Dismissal and Minute Order entered on September 9, 2022.

The Clerk of the Court shall provide notice of the Court’s ruling.