Judge Michelle Williams Court, Case 22STCP00381 2022-10-13 Tentative Ruling

Judge: Michelle Williams Court, Case: 22STCP00381, Date: 2022-10-13 Tentative Ruling

Case Number: 22STCP00381 Hearing Date: October 13, 2022 Dept: 74

22STCP00381 KELLEY MILLER vs PINK LOTUS MEDICAL HOLDINGS

Defendant Pink Lotus Medial Holdings, LLC’s Motion to Set Aside and Vacate Judgment

TENTATIVE RULING: Motion to Set Aside and Vacate Judgment is DENIED.

Background

On January 31, 2022, the Department of Industrial Relations, Labor Commissioner’s Office filed a Request that Clerk Enter Judgment and Judgment on Final Order, Decision or Award of the Labor Commissioner.

On February 2, 2022, the clerk entered judgment in favor of Plaintiff Kelly Miller against Defendant Pink Lotus Medial Holdings, LLC in the amount of $81,250.80.

Motion

On August 31, 2022, Defendant Pink Lotus Medical Holdings, LLC filed a motion to set aside and vacate the judgment pursuant to California Code of Civil Procedure sections 473(b) and 663.

The motion is unopposed. (Code Civ. Proc. § 1005(b).)

Motion to Set Aside Judgment

Cited Statutes

“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.” (Code Civ. Proc. § 473(b).) This relief is discretionary.

“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.” (Ibid.) This relief is mandatory.

Code of Civil Procedure section 663 provides “[a] judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict.”

Code of Civil Procedure section 663(a) provides “[a] party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: (1) After the decision is rendered and before the entry of judgment. (2) Within 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.”

Defendant’s Motion is Untimely

Defendant’s motion is based upon Code of Civil Procedure section 473(b) and 663. (Not. at 1:27; Mot. at 6:7-7:10.) As noted above, Code of Civil Procedure section 473(b) requires a party to seek relief within six months and Code of Civil Procedure section 663a(a)(2) similarly provides a maximum period of 180 days to seek relief. Both of these deadlines are mandatory and jurisdictional. (See e.g. Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340 (“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.”); Conservatorship of Townsend (2014) 231 Cal.App.4th 691, 702 (“The time period to file a motion to vacate is jurisdictional and cannot be extended due to mistake, inadvertence, surprise, or excusable neglect.”).)

Defendant failed to discuss the timeliness issue in its motion. The clerk entered judgment in this action on February 2, 2022. Defendant filed its motion on August 31, 2022. Six months or 180 days from February 2, 2022 is August 1, 2022. Accordingly, Defendant’s motion is untimely and the Court lacks the authority to provide the relief sought. The motion is DENIED on this basis.

None of Defendant’s Other Arguments Are Persuasive

Even if the motion was timely under Code of Civil Procedure section 663(a), the Court notes that Code of Civil Procedure section 663 does not apply to the judgment at issue as it was not “based upon a decision by the court, or the special verdict of a jury.” (Code Civ. Proc. § 663.)

Defendant argues the judgment is an unenforceable penalty citing Greentree Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal.App.4th 495, which relied upon Civil Code section 1671. (Mot. at 7:10-8:20.) However, the Court finds Defendant’s argument precluded by Department of Industrial Relations v. Built Pacific, Inc. (2021) 62 Cal.App.5th 780. In that case, the Court of Appeal found “[t]he plain language of the statute [Civil Code section 1671] indicates it does not apply to judgments not based in contract” and found Greentree and similar cases “address civil contract disputes; they do not address the applicability of Civil Code section 1671 to judgments based on the Public Work Laws or any other similar statutory laws.” (Id. at 788–789.) The judgment in this case was entered pursuant to statute. Additionally, the Court of Appeal found that even if Civil Code section 1671 did apply, the Labor Commissioner’s terms were reasonable. (Id. at 791 (“unlike a civil plaintiff, the DLSE was statutorily vested with the authority to investigate the alleged labor violations and to determine the amount due under the applicable statutes. [Citation]. Although the DLSE was willing to take less than the full amount due under the CWPA, it was willing to do so in order to expedite payment of the wages due to the laborers, and not based on a lack of guarantee that it would succeed in obtaining the full amount claimed in litigation.”).)

Defendant contends Plaintiff accepted the last settlement payment and therefore waived any claim of breach. (Mot. at 8:22-9:2.) However, Defendant does not cite any authority supporting the conclusion that a merits-based defense is an appropriate ground to set aside a judgment, particularly where, as here, Defendant’s motion is untimely under the relevant statutes.

Defendant contends the Court is bound by res judicata because Judge Robert Draper “has already set aside and vacated the identical judgment against Defendant Andy Funk—based on a virtually identical motion and evidence.” (Mot. at 9:3-10:3.) However, Defendant Funk’s motion was timely filed on March 14, 2022 to set aside the February 2, 2022 judgment in 22STCP00367 Miller v. Funk. (Komsky Decl. Ex. L.) Thus, the timeliness issue was not before the court and res judicata does not apply. (See generally Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 491 (“the claim preclusion aspect of the res judicata doctrine applies only to matters that were raised or could have been raised in the earlier action on matters that were litigated or litigable. [Citation] A necessary corollary to this statement of the law relating to claim preclusion is that a prior judgment generally does not bar a subsequent claim if the matter could not have been raised or litigated in the earlier action.”).) Defendant does not cite any authority indicating the doctrine of res judicata can operate to extend the statutory time limit to vacate a judgment.

Finally, Defendant contends the Labor Commission is acting improperly, referring to the inactive status of attorney Stephen Gaird Wenger. (Mot. at 10:4-19.) Defendant does not cite any authority in this section of its argument. Therefore, Defendant has not demonstrated its discussion is relevant or a basis to vacate the judgment.