Judge: Wesley L. Hsu, Case: 21PSCV00808, Date: 2023-04-24 Tentative Ruling

Case Number: 21PSCV00808    Hearing Date: April 24, 2023    Dept: L

1. The Motion to Set Aside Default and Default Judgment and Motion to Quash Service of Summons is DENIED in part (i.e., as to Dr. Privitera’s Holistic Clinic) and GRANTED in part (i.e., as to Alternative Endeavors, Inc.).

2. See below.

Background    

Plaintiff Malissa Murillo (“Plaintiff”) alleges as follows: Plaintiff worked for Defendants Dr. Privitera’s Holistic Clinic (“Clinic”), Alternative Endeavors, Inc. (“Endeavors”), Anakin Mark Privitera (“Privitera””) (collectively, “Defendants”) as an office assistant at Clinic, first in the fall of 2019-early 2020 and again from August 2021-September 9, 2021. Privitera made lewd and vulgar comments in Plaintiff’s presence on a repeated basis and made sexual advances to her.

On October 5, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-40 for:

1.     Discrimination Based on Sexual Harassment in Violation of FEHA

2.     Failure to Timely Pay Wages Owed

On December 23, 2021, Endeavors’ default was entered. On April 18, 2022, Clinic’s default was entered.

The Final Status Conference is set for June 23, 2023. Trial is set for July 14, 2023.

1. Motion to Set Aside Default

Legal Standard

Code of Civil Procedure Section 473, subdivision (b)

Relief under Code of Civil Procedure section 473 is either discretionary or mandatory. A motion for mandatory relief must be “made no more than six months after entry of judgment” and be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)

The attorney affidavit of fault must contain a “straightforward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The attorney affidavit of fault, however, need not include an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) “Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4^th 1027, 1033.) Relief must be granted unless the court finds that the default or dismissal was not in fact the attorney’s fault. (Id.)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ., Proc., § 473, subd. (b).) A motion for discretionary relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Id.) “The burden of proof. . . is on the moving party who must establish his position by a preponderance of the evidence.” (Luz v. Lopes (1960) 55 Cal.2d 54, 62.) “Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Rapplyea v. Campbell (1994) 8 Cal.4^th 975, 980 [quotation marks and citation omitted].)

A motion for relief under section 473, subdivision (b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (Code Civ. Proc., § 473, subd. (b).)

Code of Civil Procedure Section 473, subdivision (d)

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

Discussion

Clinic and Endeavors[1] move the court for an order, per Code of Civil Procedure §§ 473, setting aside the default and any default judgment. Clinic moves on the basis of subdivision (d), while Endeavors moves on the basis of subdivision (b).

Evidentiary Objections

The court rules on Plaintiff’s evidentiary objections as follows:

--As to Denni Declaration: Sustained as to Nos. 1-7 and Overruled as to No. 8

--As to Privitera Verifications: Sustained.

Merits

At the outset, the court notes that on January 24, 2023, Clinic and Endeavors filed a “Motion to Set Aside Default and Default Judgment,” which was ultimately heard on March 8, 2023. The court’s tentative, at that time, was to deny the motion; however, the March 8, 2023 minute order reflects, in relevant part, that the court granted, over Plaintiff’s objection, a request made by Clinic’s and Endeavors’ counsel “to continue the instant motion for time to cure defect in declaration noted in the court's tentative, continued the hearing and permitted Clinic and Endeavors to file an amended motion “by no later than the end of business on March 9, 2023.” The instant motion was filed on March 9, 2023.

1.     Clinic

Again, Clinic’s motion is solely supported by the declaration of counsel Paul Denni (“Denni”), the substance of which (as it pertains to Clinic) has been largely gutted by the court’s ruling on Plaintiff’s evidentiary objections (see above). No evidence has been presented to the court that Clinic is not a viable entity.

The motion, then, is denied as to Clinic.

2.     Endeavors

Preliminarily, Plaintiff’s contention that Endeavors’ request for Code of Civil Procedure § 473, subdivision (b) relief is untimely fails. An application for discretionary relief under subsection (b) must be made “within a reasonable time. . .” and “in no case exceeding six months. . .” after entry of the default. However, the rule is different for relief based on an attorney affidavit of fault: there, application for such relief must be made “no more than six months after entry of judgment.” Denni has provided the court with a sufficient attorney affidavit of fault as to Endeavors. (See Denni Decl., ¶¶ 7, 9, and 13-15).

The motion is granted as to Endeavors.

2. Motion to Compel Compliance with Court Orders

Legal Standard

“A judicial officer shall have power: . . (b) To compel obedience to the officer’s lawful orders as provided in this code.” (Code Civ. Proc., § 177, subd. (b).)

“Misuses of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010, subd. (g).)

“To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2023.030, subd. (a).)

“If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: . . . (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories . . . If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2030.290, subd. (c).)

Discussion

Plaintiff moves the court, per Code of Civil Procedure §§ 177, 2023.010, 2023.030, 2023.040 and 2030.290, et seq., for orders (1) that Privitera and his counsel, Paul J. Denni, Esq. (“Denni”), comply with the court's September 6, 2022 order awarding Plaintiff sanctions in the sum of $511.65, jointly and severally; (2) that Privitera and Denni comply with the court's November 16, 2022 order awarding Plaintiff sanctions in the sum of $511.65, jointly and severally; (3) that Privitera comply with the court's November 16, 2022 order and provide verified, code-compliant responses, without objections, to Plaintiff's Form Interrogatories; and (4) awarding sanctions of $1,786.65 in favor of Plaintiff and against Privitera and Denni, jointly and severally.

Plaintiff’s counsel Marcy Railsback (“Railsback”) represents as follows: On August 10, 2022, Plaintiff filed and served a “Motion for an Order that the Truth of All Matters Specified in Plaintiff’s First set of Requests for Admission be Deemed Admitted.” (Railsback Decl., ¶ 6.) On September 6, 2022, the court granted the foregoing motion and awarded sanctions in the reduced sum of $511.65 against Privitera and his counsel, jointly and severally, to be paid within 30 days of the date of the notice of ruling. (Id., ¶ 8, Exh. 1.) On September 13, 2022, Plaintiff served a notice of ruling. (Id., ¶ 9, Exh. 2.) The sanctions were not paid by October 13, 2022. (Id., ¶ 10.) Payment was requested on November 18, 2022, December 1, 2022 and January 23, 2023; on December 7, 2022, Denni asked Railsback for an additional week to make payment, but then failed to ever make payment. (Id., ¶¶ 11-14.)

Further, on October 17, 2022, Plaintiff filed and served a “Motion to Compel Responses to Plaintiff’s First Set of Form Interrogatories.” (Id., ¶ 17). On November 16, 2022, the court granted the foregoing motion and awarded sanctions in the reduced sum of $511.65 against Privitera and his counsel, jointly and severally, to be paid within 30 days of the date of the notice of ruling. (Id., ¶ 19, Exh. 4.) On November 18, 2022, Plaintiff served a notice of ruling. (Id., ¶ 20, Exh. 5.) The sanctions were not paid by December 19, 2022 nor were they ever paid. (Id., ¶ 21.) Also, although Privitera served amended responses to the Form Interrogatories on January 17, 2023 (after having served defective and improperly verified responses on November 7, 2022), said responses were improperly verified and contained objections. (Id., ¶¶ 22 and 25-27).

At the outset, the court summarily denies Plaintiff’s first two requests, inasmuch as any prior sanctions orders are enforceable as a judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4^th 608, 615 [i.e., “[M]onetary sanction orders are enforceable through the execution of judgment laws”].)

The court grants the motion as to Plaintiff’s third request. The court is not troubled by the verification attached to Exhibit 6, inasmuch as the January 17, 2023 responses do not appear to be “amended” responses, but “initial” responses (i.e., based on the fact that the straightforward motion to compel was granted by the court on November 16, 2022 and on counsel’s representation that responses were served on November 7, 2022 but “were not properly verified;” as stated in Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636, “[u]nsworn responses are tantamount to no responses at all”). However, it is apparent, upon reviewing said responses served January 17, 2023, that Privitera failed to comply with the court’s November 16, 2022 order to provide responses without objections as to Response No. 15.1. (See Exh. 6, P. 20, Resp. to No. 15.1.)[2] Privitera, then, is ordered to comply with the court’s November 16, 2022 order within 10 days from the date of the notice of ruling.

Incidentally, Privitera did not object to Nos. 12.3, 12.6, 14.1, 14.2 and 16.6, as Plaintiff represents. Any issues as to the sufficiency of the substantive content of the responses, however, should be addressed via a motion to compel further responses.

Sanctions

Plaintiff seeks sanctions against Privitera and Denni, jointly and severally, in the amount of $1,786.65. The court declines to impose sanctions under the circumstances.