Judge Teresa A. Beaudet, Case Number: 20STCV20353, Date: 2024-04-22 Tentative Ruling

FRANK LEE, Plaintiff, vs. PARAMOUNT UNIFIED SCHOOL DISTRICT, et al. Defendants.	Case No.:	20STCV20353
	Hearing Date:	April 22, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT AND AWARD OF COSTS

Plaintiff Frank Lee (“Plaintiff”) filed this action on May 28, 2020 against Defendant Paramount Unified School District (“Defendant”). The Complaint alleges causes of action for

(1) discrimination on the basis of race; (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation; and (4) disability discrimination.

On January 24, 2023, the Court issued an Order granting Defendant’s motion for summary judgment.

On August 24, 2023, the Court issued an “Order on Request to Enter Costs on Judgment.” The August 24, 2023 Order provides, inter alia, that “[t]he Costs as indicated in Defendants’ Memorandum of Costs in the amount of $4,523.60 are to be entered on the Judgment.”

Plaintiff now moves “for an order to set aside, pursuant to Code of Civil Procedure § 473, the Costs Judgment entered on August 24, 2023 in the amount of $4,523.60.” Defendant filed a “non-opposition” to the motion indicating that “Defendant, Paramount Unified School District, is not opposing Plaintiff’s Motion to Set Aside Judgment and Award of Costs.”

“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 of Civil Procedure section 473, subdivision (b) also contains a mandatory provision: “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.” Under the mandatory provision, the attorney’s neglect does not need to be excusable. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

As set forth above, on August 24, 2023, the Court issued an “Order on Request to Enter Costs on Judgment,” which provides, inter alia, that “[t]he Costs as indicated in Defendants’ Memorandum of Costs in the amount of $4,523.60 are to be entered on the Judgment.”

Plaintiff cites to Government Code section 12965, subdivision (c)(6), which provides that “[i]n civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Plaintiff asserts that here, “Defendant is not entitled to recover its costs as it has failed to show that Plaintiff filed his lawsuit without foundation or that this lawsuit was ‘frivolous, unreasonable, or groundless when brought.’” (Mot. at pp. 5:26-6:1.)

Plaintiff asserts that “Plaintiff’s failure to timely file a Motion to Strike/Tax Costs was due to issues existing in the Law Offices of Gary R. Carlin which caused the attorneys in this firm to overlook the need to file this motion. These issues are set forth in greater detail in the Declaration of Gary R. Carlin filed concurrently with this motion. This shows that Plaintiff’s failure to file a Motion to Strike/Tax Costs was not deliberate, but was rather due to mistake, inadvertence, and excusable neglect due to the extraordinary circumstances that had arisen in this firm and in Plaintiff’s counsel’s personal life which caused him the firm [sic] to overlook the need to file a Motion to Strike/Tax Costs.” (Mot. at p. 6:14-22.)

As discussed, Plaintiff moves to set aside the August 24, 2023 Order pursuant to Code of Civil Procedure section 473. (Notice of Motion at p. 2:4.) As set forth above, Code of Civil Procedure section 473, subdivision (b) provides, inter alia, that “[n]otwithstanding 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.” (Emphasis added.) However, here, Plaintiff does not move to set aside any default, default judgment, or dismissal.

Plaintiff also cites to Code of Civil Procedure section 473, subdivision (a)(1), which provides that “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Plaintiff appears to be asserting that the failure to object to the costs requested constitutes a “mistake in any other respect.” As noted above, there is no opposition to Plaintiff’s assertion.

Based on the foregoing, the Court finds that Plaintiff has shown that Code of Civil Procedure section 473 provides grounds for the relief sought in the instant motion and the Court sets aside the Court’s August 24, 2023 Order.

Superior Court of California

County of Los Angeles

Department 50