Judge Upinder S. Kalra, Case 21STCV30997 2022-12-08 Tentative Ruling

Judge: Upinder S. Kalra, Case: 21STCV30997, Date: 2022-12-08 Tentative Ruling

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Case Number: 21STCV30997 Hearing Date: December 8, 2022 Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE: December 8, 2022

CASE NAME: Chris Cowart v. LAC Metro

CASE NO.: 21STCV30997

MOTION TO SET ASIDE/VACATE DEFAULT JUDGMENT

MOVING PARTY: Plaintiff Chris Cowart

RESPONDING PARTY(S): Defendant LAC Metro

REQUESTED RELIEF:

1. An order setting aside/vacating the default judgment.

TENTATIVE RULING:

1. Motion to Set Aside/Vacate Default Judgment is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 23, 2021, Plaintiff Chris Cowart (“Plaintiff”) filed a complaint against LAC Metro (“Defendant”). The complaint alleged two causes of action: (1) Wrongful Termination in Retaliation and (2) Wrongful Termination in Violation of the Collective Bargaining Agreement. The complaint alleges that he worked for the Defendant from February 2008 to July 2020. Plaintiff alleges he was wrongfully terminated, but the complaint is unclear.

On September 22, 2021, Defendant filed a Demurrer that was SUSTAINED, with leave to amend.

On January 20, 2022, Plaintiff filed a First Amended Complaint.

On February 24, 2022, Defendant filed a Demurrer that was SUSTAINED, with leave to amend.

On June 2, 2022, Plaintiff filed a Second Amended Complaint.

On July 6, 2022, Defendant filed an Answer.

The current Motion to Set Aside/Vacate Default was filed on October 3, 2022. Defendant’s Opposition was filed on November 23, 2022. Plaintiff’s reply was filed on November 28, 2022.

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.

CCP § 473(d) provides in relevant part that “[t]he court may, upon motion of the injured party…set aside any void judgment or order.” CCP § 473(d)

CCP section 473.5 permits the Court to set aside a default and default judgment when the service of a summons has not resulted in actual notice to a party in time to defend the action. ¿CCP section 473.5 requires the motion to be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by the party's avoidance of service or inexcusable neglect. ¿The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of the following:

1) two years after entry of a default judgment against him or her; or

2) 180 days after service on him or her of a written notice that the default or default judgment has been entered. ¿

ANALYSIS:

Plaintiff moves to have the Court grant a default judgment on Defendant’s attorney. This argument is based on the alleged fraud committed on the court by Dennis Gutierrez. Specifically, Plaintiff argues that in the demurrer, Mr. Gutierrez misrepresented facts concerning the grievance policy whereby Plaintiff could appeal the procedure to the Chief Labor Relations Officer. (Motion 1: 18-24.) Plaintiff also requests 1.2 million dollars in damages because “when a party lies about matters bearing directly on the issue of damages dismissal/default in an appropriate sanction.” (Reply 3: 13-25.)

Defendant contends that Plaintiff provides no authority for the relief he is seeking, a court granting default judgment against an attorney to a lawsuit. Moreover, Plaintiff did not explain why the statement about the collective bargaining agreement having a appeal process was false.

Lastly, Defendant argues that Civil Code § 47(b) states a privileged publication is one that is made in a judicial proceeding, and thus any requested relief based on those statements is barred.

The Plaintiff’s motion is improper. Plaintiff is requesting the Court grant default judgment against Defendant’s attorney. First, requesting default is a procedure for when a party fails to respond to an initial complaint or after an Answer is stricken for a discovery sanction. This is not the situation here. Moreover, Plaintiff’s motion is to set aside default, but then asks the Court to grant default; these are contradictory. Additionally, Plaintiff does not provide any authority for the Court to grant default against Defendant’s attorney. Second, the basis for the motion is alleged misrepresentations. However, the statement in the demurrer is based on the Collective Bargaining agreement, which is attached. The statement made by Defendant’s counsel was not a misrepresentation as it was based on this agreement.

Motion to Set Aside/Vacate Default is DENIED.

Conclusion:

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

Motion to Set Aside/Vacate Default is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated: December 8, 2022 __________________________________ Upinder S. Kalra

Judge of the Superior Court