Judge: Teresa A. Beaudet, Case: 19STCV46503, Date: 2023-01-06 Tentative Ruling
Case Number: 19STCV46503 Hearing Date: January 6, 2023 Dept: 50
THERE ARE TWO TENTATIVES:
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curtis r. olson, et
al., Plaintiff, vs. vidala aaronoff, et
al., Defendants. |
Case No.: |
19STCV46503 |
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Hearing Date: |
January 6, 2023 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE] ORDER RE: DEFENDANT ANCIENT TEMPLE OF WINGS’ MOTION TO QUASH SERVICE OF
SUMMONS; TO DISMISS ON THE GROUNDS OF AN INCONVENIENT FORUM; OR IN THE ALTERNATIVE
FOR A STAY OF ENTIRE ACTION |
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Background
Plaintiff Curtis R. Olson (“Plaintiff”) filed this action on December
23, 2019 against multiple parties, including The Ancient Temple of Wings (“ATW”).
Plaintiff filed the operative Second Amended Complaint (“SAC”) on November 17,
2020.
Default was entered against ATW on November 4, 2021. ATW moved to set aside entry of the default, and on September 1,
2022, the Court denied the motion without prejudice.
ATW now moves for an order setting
aside service of the summons on ATW, dismissing this action on the grounds of
an inconvenient forum, or in the alternative, staying the entire action
pursuant to
Discussion
As an initial matter, the instant motion is captioned and
noticed as a motion to quash service of summons, to dismiss on the grounds of
an inconvenient forum, or in the alternative, for a stay of the action.
However, the Court notes that ATW’s motion also cites to
To the extent
ATW is moving to set aside the entry of default against it, the Court notes
that “
As set forth above, ATW moves
to quash service of the summons,
dismiss this action on the grounds of an inconvenient forum, or in the
alternative, stay the action. As a threshold matter, the Court notes that “
Accordingly, because default was entered against ATW
before ATW filed the instant motion, the Court finds that it has no
jurisdiction to consider the motion.
Conclusion
Based
on the foregoing, ATW’s motion is denied for lack of jurisdiction.
Plaintiff is ordered to give notice of this Order.
DATED:
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
|
curtis r. olson, et
al., Plaintiff, vs. vidala aaronoff, et
al., Defendants. |
Case No.: |
19STCV46503 |
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Hearing Date: |
January 6, 2023 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE] ORDER RE: MOTION TO SET ASIDE JUDGMENT OF MAY 17, 2022 |
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Background
Plaintiff Curtis R. Olson (“Plaintiff”) filed this action on December
23, 2019 against multiple parties, including Vidala Aaronoff (“Aaronoff”). Plaintiff
filed the operative Second Amended Complaint on November 17, 2020.
On September 21, 2021, Plaintiff filed a motion for statutory
attorneys’ fees under Code of Civil Procedure section
425.16. The motion was unopposed. On April 28, 2022, the Court issued an
Order continuing the hearing on Plaintiff’s motion to May 17, 2022, finding
that a supplemental declaration from Plaintiff’s counsel was necessary. On May
4, 2022, Plaintiff filed a supplemental declaration of his counsel in support
of the motion for attorneys’ fees. No response to the supplemental declaration
was filed. On May 17, 2022, the Court issued an order granting Plaintiff’s
motion for attorneys’ fees in the amount of $41,697.00.
Aaronoff now moves for an order setting aside the
“Judgment” entered on May 17, 2022.
Plaintiff opposes.
Discussion
Code of Civil
Procedure section 473, subdivision (b)
provides in pertinent 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.”
Aaronoff’s counsel, G.
Scott Sobel, indicates that after Plaintiff filed his motion for
statutory attorneys’ fees under Code of Civil Procedure
section 425.16, Mr. Sobel “inquired
of [his] client whether she was handling the attorneys’ fees motion, and she responded that she was, however, she was
referring to a different
case, a restraining order case involving the same parties and attorneys of
record.” (Sobel Decl., ¶ 3, p. 6.) Mr. Sobel indicates that he “misunderstood that Ms. Aaronoff would
be handling this instant action’s anti-SLAPP attorney’s
fees opposition, which she
was not.” (Sobel Decl., ¶ 4, p. 6.)
As set forth above, on
September 21, 2021, Plaintiff filed the subject motion for attorneys’ fees, and
the motion was unopposed. On April 28, 2022, the Court issued an Order
continuing the hearing on the motion to May 17, 2022, finding that a
supplemental declaration from Plaintiff’s counsel was necessary. The Court’s
April 28, 2022 Order provides that Plaintiff’s supplemental declaration was to
be filed and served by May 4, 2022, and that Defendants’ response, if any, was
to be filed and served by May 11, 2022. On May 4, 2022, Plaintiff filed a
supplemental declaration of his counsel in support of the motion for attorneys’
fees. No response to Plaintiff’s supplemental declaration was filed. On May 17,
2022, the Court issued an order granting Plaintiff’s motion for attorneys’ fees,
and the Court’s May 17, 2022 minute order provides, inter alia, that
Eric Kennedy appeared for Plaintiff and that there were no appearances for
Defendant(s).
Mr. Sobel indicates that on May 11, 2022, his doctor directed
him to go immediately to the Emergency Department, and that he underwent
surgery that day. (Sobel Decl., ¶¶ 1, 3, p. 7.) Mr. Sobel was “later admitted
to the hospital and required surgery again on May 16. [He] was discharged home
on May 22, 2022.” (Sobel Decl., ¶ 4, p. 7.)
Although not stated in
the motion, Aaronoff appears to indicate that as a result, no response to
Plaintiff’s supplemental declaration was filed on her behalf, and Aaronoff’s
counsel was unable to attend the May 17, 2022 hearing. Aaronoff requests
that “the Court set aside the Judgment entered on May 17, 2022, consider
Defendant’s attached Opposition, and hear the matter with both sides represented in the process.” (Mot. at p.
5:19-21.)
In the opposition,
Plaintiff notes that on June 13, 2022, Aaronoff and other defendants
filed a notice of appeal from the order entered on May 17, 2022 in this case.
Plaintiff asserts that by appealing the order, Aaronoff divested this Court of jurisdiction from considering the
instant motion. Indeed, pursuant to Code of Civil
Procedure section 916, subdivision (a), “[e]xcept as provided in Sections
917.1 to 917.9, inclusive, and in Section
116.810, the perfecting of an appeal stays proceedings in the trial court
upon the judgment or order appealed from or upon the matters embraced therein
or affected thereby, including enforcement of the judgment or order, but the
trial court may proceed upon any other matter embraced in the action and not
affected by the judgment or order.” Here, Aaronoff moves for an order setting aside the May 17, 2022 “Judgment,”[1]
and also filed a notice of appeal from the Court’s May 17, 2022 Order. “As a general rule, a trial court is
without jurisdiction to vacate its judgment pending an appeal therefrom.” (Valvo v. University of Southern California (1977)
67 Cal.App.3d 887, 897, citing to Code Civ. Proc., § 916.)
Conclusion
Based
on the foregoing, Aaronoff’s
motion
is denied for lack of jurisdiction.
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Plaintiff is ordered to give notice of this Order.
DATED:
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
[1]The Court notes that no Judgment was entered on May
17, 2022, so Aaronoff appears to be
referring to the Court’s May 17, 2022 Order.