Judge: Teresa A. Beaudet, Case: 19STCV46503, Date: 2023-11-03 Tentative Ruling

Case Number: 19STCV46503    Hearing Date: March 20, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Curtis R. Olson (“Plaintiff”) filed this action on December 23, 2019 against a number of defendants, including The Ancient Temple of Wings (“ATW”).  Plaintiff filed the operative Second Amended Complaint (“SAC”) on November 17, 2020, alleging ten causes of action.

On August 29, 2023, Jane Doe filed a Cross-Complaint in this action against, inter alia, Plaintiff. The Cross-Complaint alleges nine causes of action.

As noted in the Court’s January 6, 2023 Order in this matter, default was entered against ATW on November 4, 2021. In addition, ATW previously moved 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 Code of Civil Procedure sections 410.30 and 418.10. (See January 6, 2023 Order.) On January 6, 2023, the Court issued an Order denying the motion. The Court’s January 6, 2023 Order provides, inter alia, as follows:

“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 “[t]he entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” ((Devlin v. Kearny Mesa Amc/Jeep/Renault (1984) 155 Cal.App.3d 381, 385.) Entry of default also deprives the court of jurisdiction to consider any motion other than a motion for relief from default. ((W.A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist. (1959) 176 Cal.App.2d 67, 72 [“The subsequent untimely filings by appellant and motions made by respondent did not affect the duty of the clerk to enter default when requested, nor did they restore the jurisdiction to the court which was lost when default should have been entered.”].) 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.” (January 6, 2023 Order at p. 2:14-25.)

ATW now moves for an order setting aside the Court’s January 6, 2023 Order. Plaintiff opposes.

Discussion

In the instant motion, ATW cites to Code of Civil Procedure section 473, subdivision (b)¿, which 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.” 

In the instant motion, ATW notes that on April 13, 2022, it filed a “Motion to Set Aside Entry of Default.” The caption page of this motion states, inter alia, “Concurrently filed: 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.” (See ATW’s April 13, 2022 Motion to Set Aside Entry of Default, p. 1.) ATW also filed another motion on April 13, 2022, specifically, the “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.”

In the instant motion, ATW argues that “Counsel’s intent was that the Motion to Set Aside Default be considered as the motion in chief, and that the Motion to Quash, etc. be considered only if the Motion to Set Aside were granted. Instead, it appears that the Court construed the motions in the reverse, ruling only on the Motion to Quash, etc., that it lacked jurisdiction to hear that motion. Had the Court construed the motions as intended, and the Motion to Set Aside granted, the Motion to Quash would then have been considered on its merits.” (Mot. at p. 4:15-21.) In the instant motion, ATW seeks an “order setting aside the Court’s Order of January 6, 2023,” and requests that the court consider the “Motion to Set Aside Entry of Default” attached to the instant motion for relief. (Mot. at p. 5:2-4.)

It is unclear why ATW contends the Court “construed the motions in the reverse,” (Mot. at p. 4:18), or how the Court could have purportedly done so. As set forth above, ATW filed two separate motions on April 13, 2022. ATW filed a motion to set aside entry of default that was  noticed for hearing on May 19, 2022.[1] ATW also filed a 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, which was noticed for hearing on October 11, 2022.[2] Thus, ATW filed two separate motions to be heard at two separate hearings. 

Moreover, to the extent ATW is arguing that the Court did not rule on ATW’s April 13, 2022 motion to set aside entry of default, that is not the case. As set forth above, the Court’s September 1, 2022 minute order in this action provides, inter alia, that “[t]he Motion to Set Aside/Vacate Default filed by THE ANCIENT TEMPLE OF WINGS, on 04/13/2022 is Denied. without prejudice.” As noted by Plaintiff, this September 1, 2022 minute order on ATW’s motion to set aside entry of default was issued several months before the Court’s January 6, 2023 Order (that ATW seeks to set aside).

In light of the foregoing, it is unclear how Code of Civil Procedure section 473, subdivision (b) is applicable to the circumstances here. The Court does not find that ATW has demonstrated grounds for the Court to set aside the January 6, 2023 Order.

Conclusion

Based on the foregoing, ATW’s motion is denied.  

Plaintiff is ordered to give notice of this Order.

DATED:  March 20, 2024     

                        ________________________________

Hon. Teresa A. Beaudet