Judge: Upinder S. Kalra, Case: 21STCV06753, Date: 2023-02-23 Tentative Ruling

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Case Number: 21STCV06753    Hearing Date: February 23, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 23, 2023                                          

CASE NAME:           Darryl Wilkins v. Hillary Duff, et al.

CASE NO.:                21STCV06753

MOTION FOR RELIEF FROM JUDGMENT

MOVING PARTY: Plaintiff Darryl Wilkins

RESPONDING PARTY(S): Defendants Talk WW Production, Inc., and Fox Broadcasting Company

REQUESTED RELIEF:

1.      An order granting relief from the granting of the Motion to Strike, Anti-SLAPP 

TENTATIVE RULING:

1.      Motion for Relief from Judgment is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On February 19, 2021, Plaintiff Darryl Wilkins (“Plaintiff”) filed a complaint against Defendants Hillary Duff, Wendy Williams, The Wendy Williams Show, Talk WWW Production Inc., Fox Broadcasting Company, and Does 1 through 50. The complaint alleged two causes of action: (1) Libel and (2) Slander. The complaint alleges that while the Plaintiff was taking photographs at a public park when Defendant Duff confronted Plaintiff and videotaped their interaction. This interaction was posted on Defendant’s Duff’s social media profile, where the Defendant called the Plaintiff pejorative terms, such as a child predator. The other Defendants, like Wendy Williams and the Wendy Williams Show, posted disparaging comments on television.

On November 17, 2021, Plaintiff and Defendants Talk WW Production Inc. and Fox Broadcasting filed a stipulation to extend the deadlines for Defendants to respond.

On January 24, 2022, Defendants Talk WW Production, Inc., and Fox Broadcasting Company filed a Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP), which was GRANTED.

On July 8, 2022, Defendants Talk WW Production, Inc., and Fox Broadcasting Company filed a Motion for Attorney’s Fees.

Plaintiff’s current Motion for Relief from Judgment was filed on November 9, 2022. Defendants Talk WW Production, Inc., and Fox Broadcasting Company Opposition was filed on February 8, 2023.

LEGAL STANDARD

“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…  [The application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  CCP § 473(b). 

Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495. “The defendant must … demonstrate a satisfactory excuse for not responding to the original action in a timely manner.” Id. at 504. Moving parties have the initial burden to prove excusable neglect by a preponderance of competent evidence. Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.   

ANALYSIS:

Plaintiff moves for relief from the judgment entered on May 9, 2022. The Court granted Defendant’s Demurrer and Special Motion to Strike under CCP § 425.16.

Plaintiff moves for relief based on CCP § 473(b). Plaintiff argues that relief should be granted due to attorneys’ mistake, inadvertence, surprise, or neglect.  Specifically, in the Declaration of Counsel, Fred Hanassab indicates that there were various factors as to why relief should be granted. These factors include: counsel’s brother has lung cancer and is his primary care giver; counsel had a Covid-19 infection; counsel’s elderly mother, whom he cares for, had Covid-19; a recently hired associate “abandoned his position without notice”; counsel’s office has had major staff turn-over; the hearing was not calendared in his office; and his legal assistant “could not locate said notice by Defendant.” (Dec. Hanassab ¶¶ 3-12.) Mr. Hanassab argues that he wsa unaware of the motion and was “surprised to learn of the hearing” and therefore, relief is mandatory. (Motion 2: 14-18.)

In response, Defendants argue that Plaintiff’s request is improper and fails as a matter of law. First, the mandatory relief provision only applies to default, default judgment or dismissal. The requested relief by Plaintiff is inapplicable as the requested relief concerns the granting of an anti-SLAPP motion. Second, the discretionary relief under CCP § 473(b) does not apply as well because counsel’s failure to oppose the anti-SLAPP motion was not an excusable mistake. One, Mr. Hanassab failed to properly oversee his junior associate. Two, Plaintiff’s counsel “blames electronic service and staff changes.” However, Defendants sent all correspondence to Mr. Hanassab’s email and served hard-copies via mail. Moreover, Mr. Hanassab agreed to an extension as to Defendants’ Anti-SLAPP motion, which provided him notice that a motion would be filed. Three, the personal issues do not allow relief as this Court already admonished Plaintiff’s counsel for failure to request an ex parte application for an extension after learning about the hearing a week before. Lastly, Defendants argue that the discretionary provision fails because Plaintiff waited too long to request relief. The statute provides a six-month time period for request for relief under CCP § 473(b). Here, Plaintiff waited exactly 6 months to file the motion, despite attending the hearing on May 9, 2022, after which he could have promptly moved for relief.

The Court finds that Plaintiff’s request for relief fails for various reasons. First, Plaintiff has presented no authority that for the proposition that the mandatory relief provision of CCP § 473(b) is applicable here as to a special motion to strike. The language of the statute indicates that the court shall “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. Here, the Court did not enter default or a dismissal but rather granted a special motion to strike. Second, Commentators observe that relief is unavailable for a contested order or judgment on the merits. (See Weil and Brown, Cal.Practice Guide: Civ.Proc.Beforet Trial(TRG 2022) Defaults, §§ 5:300.)  Here, the Court ruled on the merits of the motion. Plaintiff may not have been fully prepared, but Plaintiff did participate. Third, the Court’s ruling was not based on  counsel’s inaction, but rather because the because the Complaint utterly failed to allege causes of action that had any probability of success.  As indicated in its ruling granting the Special Motion to Strike, “[t]o be clear, the Complaint fails to allege any defamatory statements made by these specific Defendants. . . . Moreover, this statement is one of opinion, and are not ‘provably false actual assertions.’ Whether or not someone’s actions are ‘creepy’ are opinions. . . . The Complaint also fails to allege facts supporting its bare conclusory allegation that statements made by Defendants constituted slander.”(Minute Order of Ruling 5-9-22.)

Ass to the discretionary provision of section 473, subdivision (b), the Court finds that Plaintiff’s counsel has failed to provide excusable mistake. While the Court is empathetic to counsel’s personal issues, Mr. Hanassab failed to act in a prudent manner. First, as this Court previously indicated, counsel failed to follow up and did not take any effort to file an ex parte application or request a stipulation from Defendant to continue the matter. Second, even after the after the hearing was held in May 2022, Plaintiff’s counsel failed to act with reasonable diligence in filing this motion. Counsel did not file the instant motion until November 9, 2022. In those many months after the order was entered, Defendants moved for attorneys’ fees on July 8^th, 2022. On the hearing date on November 3, 2022, counsel still had not filed the instant motion. Notably, counsel failed to file an opposition to the Attorney’s Fees motion. indicated that he was not ready. Even though he did not file an Ex Parte Application, the Court granted an oral motion to continue that hearing because counsel was not prepared to respond. Only then did counsel then file this motion on November 9, 2022, four months after Defendants filed the Attorneys’ Fees Motion.  This is hardly acting diligently. In fact, counsel conduct evidenced just the opposite—it was dilatory.  a response. Thus, Plaintiff’s counsel has failed to demonstrate diligence in requesting relief.

Therefore, Motion for Relief from Judgment is DENIED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion for Relief from Judgment is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 23, 2023                   _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court