Case Number: EC061886    Hearing Date: August 01, 2014    Dept: A

Hardinne v Nestlé

MOTION TO SET ASIDE ORDER ENTERING JUDGMENT

Calendar: 8
Case No: EC061886
Date: 8/1/14

MP: Plaintiff, Russel Hardinne
RP: Defendant, Nestlé USA, Inc.

RELIEF REQUESTED:
1. Set aside judgment entered on May 5, 2010.

ANALYSIS:
This case arises from the Plaintiff’s claim that he suffered retaliation when he reported wrongdoing and that he and suffered harassment and discrimination because he is a member of a minority. The Court sustained the Defendant’s demurrer to the Complaint on the ground that it was barred by the statute of limitations. Although the Court granted leave to amend, the Plaintiff did not file a First Amended Complaint. As a result, the Court and entered a judgment of dismissal on June 12, 2014.

This hearing concerns the Plaintiff’s motion to set aside the dismissal. CCP section 473(b) provides the Court may set aside a default entered through a party’s mistake, inadvertence, surprise, or excusable neglect.
The Plaintiff’s memorandum consists solely of citations to law. No argument is set forth that applies the law to the facts in an effort to demonstrate that the Plaintiff is entitled to any relief under CCP section 473(b). In order to show that he is entitled to relief under CCP section 473(b), the Plaintiff must show that the acts which brought about the default were the acts of a reasonably prudent person under the same circumstances. Jackson v. Bank of America (1983) 141 Cal. App. 3d 55, 58.
Although CCP section 473(b) advances the policy that the law favors trying all cases and controversies upon their merits, case law holds that this policy “should not . . . relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.” Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal. 3d 892, 900.

The Plaintiff states in his declaration filed on June 24, 2014 that the Court granted him 30 extra days to file an amended petition at the May 30, 2014 hearing on the Defendant’s ex parte application to dismiss the case and enter a judgment. However, on May 30, 2014, the Court granted the Defendant’s application to dismiss the case and to enter judgment. The Court did not grant any additional time to the Plaintiff to file an amended pleading. Since the Court did not grant any additional time to file an amended pleading, the Plaintiff’s declaration includes no facts offering a legal basis to set aside the dismissal.
The Plaintiff also filed a second declaration on July 11, 2014. The Plaintiff avers that he was not notified of the May 30, 2014 hearing on the Defendant’s ex parte application. This is in contradiction to his prior declaration, in which he claimed that at the May 30, 2014 hearing, the Court granted him additional time to file an amended pleading.
Further, the evidence offered by the Plaintiff impeaches his statement that the Defendant did not notify him of the ex parte application. The Plaintiff attached a copy of the email that was sent to him by the Defendant’s counsel. The email is dated Wednesday, May 28, 2014 and was sent at 5:26 PM. The email states that it formalizes the voicemail made at about 5:20 PM on Wednesday to provide notice that the Defendant would be appearing on Friday, May 30, 2014 to seek an order dismissing the Plaintiff’s Complaint and entered a judgment. Further, the email states that the reason for the ex parte application is that the Plaintiff did not file an amended complaint within the time set by the Court.
Under CRC rule 3.1203, a party must notify the other side that the party will be making an ex parte application. There is no requirement that the notice by made by telephone. Accordingly, even if the Defendant did not call the Plaintiff, the email sent on Wednesday was sufficient to notify the Plaintiff that the Defendant would be appearing on Friday with an ex parte application.
Additionally, the Plaintiff’s failure to receive notice of the May 30, 2014 hearing does not address the basis for the dismissal of this case. The Court dismissed this case because the Plaintiff did not file an amended pleading within the time authorized by the Court. The Plaintiff has not offered any basis for his not filing a First Amended Complaint within the time granted to him.

Therefore, the Plaintiff has not shown grounds under CCP section 473(b) to set aside the dismissal of this case.

The Court also notes that there is a separate issue regarding the Defendant’s memorandum of costs. The Defendant filed its memorandum of costs for $1,145 on July 2, 2014. Under CRC rule 3.1700, a party disputing a memorandum of costs must file a noticed motion to tax or strike.
Plaintiff did not file such a motion, but filed an “opposition” on July 14, 2014 to the memorandum of costs. Accordingly, the Plaintiff’s “opposition” is striken because a party may not file opposition papers to a memorandum of costs.

RULING:
DENY Plaintiff’s motion.

STRIKE Plaintiff’s “opposition” to the Defendant’s memorandum of costs.