Case Number: EC053872    Hearing Date: October 31, 2014    Dept: B

Motion to Set Aside

This case arises from the Plaintiff’s claim that she suffered harassment and discrimination. The Plaintiff was employed as a Special Education Teacher for the Los Angeles Unified School District. The plaintiff alleges that after the Plaintiff complained about the manner in which the Defendant’s headmaster, John McLaughlin, required her to draft Individualized Education Program meetings, Mr. McLaughlin began harassing the Plaintiff. The Plaintiff brought this action to seek damages for loss of wages, for the threats to give her an unsatisfactory job evaluation, and for the threats to suspend her.

The case was resolved when the Court granted the Defendant’s motion for summary judgment on January 13, 2012. Judgment was entered on February 1, 2012. The Plaintiff filed a notice of appeal on February 6, 2012. The Court of Appeal affirmed the judgment on May 1, 2013. Remittitur was received on July 5, 2013.

This hearing concerns the Plaintiff’s motion to set aside a judgment she claims is void. The Plaintiff argues that the judgment entered on June 26, 2013 is void because the Court lacked jurisdiction.

A review of the Court file reveals that no judgment was entered on June 26, 2013. As noted above, the judgment in favor of the Defendant was entered on February 1, 2012.

Instead, on June 26, 2013, the Court declined to hear the Plaintiff’s motion to set aside the order granting summary judgment in favor of the Defendant. It appears that the Plaintiff is confusing “order” with “judgment” because through her motion she describes orders as “judgments”.

The Court declined to hear the Plaintiff’s motion on June 26, 2013 because the remittitur had not been received from the Court of Appeal. The remittitur was received on July 5, 2013. Until a remittitur issues, the trial court cannot act upon the reviewing court’s decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time. People v. Saunoa (2006) 139 Cal.App.4th 870, 872 (holding that the trial court’s failure to wait for remittitur rendered the trial court’s order null and void).

1. Analysis of Plaintiff’s Motion to Set Aside Order Granting Summary Judgment

The Plaintiff’s motion seeks to set aside a February 2, 2012 order in which she claims that the Court granted summary judgment. However, the Court did not issue the order on February 2, 2012. Instead, the Court issued the order that granted the motion for summary judgment on January 13, 2012. Further, since the judgment was entered on February 1, 2012, it is not clear why the Plaintiff seeks to set aside a February 2, 2012 order.

The Plaintiff argues that the order granting summary judgment is void because the Defendants’ attorney, Charles Hill, submitted declarations containing perjury with the Defendants motion for summary judgment. The Plaintiff seeks relief under section 473(d), which authorizes the Court, upon motion of the injured party, or its own motion, to 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.

The Plaintiff cites to Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857 which holds that a judgment void on its face is subject to collateral attack at any time. A judgment is void if the Court rendering the judgment lacked subject matter jurisdiction or jurisdiction over the parties. In re Andres G. (1998) 64 Cal. App. 4th 476, 482-483. The order Plaintiff attacks is not void on its face and is not subject to this type of collateral attack.

The Plaintiff offers no grounds to find the Court lacked jurisdiction over the parties or that the Court lacked jurisdiction over the Plaintiff’s claims. Instead, the Plaintiff’s motion is based on her arguments that the Defendants engaged in perjury. This argument does not offer any ground to find that the judgment is void. This is the first ground to deny her motion.

Instead, the Plaintiff’s motion is based on arguments regarding the facts that the Court considered when it was making a determination on the Defendant’s motion for summary judgment. The Plaintiff’s motion includes her declaration, in which she lists paragraphs in the declarations submitted by the Defendants and concludes that they are false.

In addition, the Plaintiff submits declarations from Wendi Cowan and Lori Cole plus transcripts from proceedings on August 9 and 10 of 2012 in a criminal proceeding against the Plaintiff, People v. Pamela Mnyandu. The Plaintiff argues that this evidence demonstrates that the Defendants committed perjury in their declarations because the Defendants’ account of events is not true.

This review of the Plaintiff’s motion reveals that it is actually a motion for reconsideration because the Plaintiff is asking the Court to reconsider the January 13, 2013 based upon new evidence, i.e., her arguments that the Defendants engaged in perjury. The facts offered by the Plaintiff in the declarations and in the transcript are her attempt to meet her burden of proof under CCP section 437c and demonstrate that there is a question of fact.

The name of the Plaintiffs’ motion is not controlling because CCP section 1008, which identifies the procedures for seeking reconsideration of a prior order, applies to any motion that asks the Court to decide the same matter previously ruled on. Curtin v. Koskey (1991) 231 Cal.App.3d 873, 878. Under CCP section 1008(a), any party affected by a Court’s order may seek reconsideration of that order by filing an application within 10 days after service of the notice of entry of the order. The application must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order (italics added for emphasis). The party making the application must state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court’s jurisdiction with regard to applications for reconsideration and that no application to reconsider any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.

Here, the Plaintiff did not file a timely motion for reconsideration because the Plaintiff did not seek relief within ten days from the January 13, 2012 order that granted summary judgment. Accordingly, the Court is without jurisdiction under CCP section 1008(e) to consider the Plaintiff’s motion.

In addition, the entry of judgment divests the trial court of authority to rule on a motion for reconsideration. Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482. Here, a judgment was entered on February 1, 2012. In addition, the judgment was affirmed by the Court of Appeal on May 1, 2013. Since the judgment had already entered before the Plaintiff filed her motion, the Court lacks authority to reconsider the orders issued in the case.

The Plaintiff attempts to cite to an unpublished case to argue that the Court should not consider her motion as a motion for reconsideration. The Plaintiff acknowledges that the case, Jordan v. O’Connor Hosp. (Cal.App. 6th Dist. June 27, 2013) 2013 Cal. App. Unpub. LEXIS 4554, is unpublished.

Under CRC rule 8.1115 an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a Court or a party in any other action. The only exceptions are when

1) the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or
2)When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.

The unpublished case is not relevant under the doctrines of the law of the case, res judicata, or collateral estoppel because it does not involve the Plaintiff, the Defendants, or any issues regarding the Plaintiff’s employment. Further, this is not a criminal or disciplinary action for which the opinion would be relevant.

Accordingly, the Court will not rely upon the unpublished opinion.

Accordingly, there are no grounds to find that the Plaintiff’s motion is not an untimely motion for reconsideration. Instead, the Plaintiff’s attempt to argue that the Defendant’s declarations contain false facts about the circumstances of her employment is an attempt to obtain reconsideration of the Court’s decision to grant the Defendant’s motion for summary judgment.

Therefore, the Court denies the Plaintiff’s motion to vacate because there are no grounds to find that the judgment is void. Further, the Plaintiff’s motion is an attempt to obtain reconsideration of a prior order with new facts regarding the issues determined in the motion for summary judgment. Since the Plaintiff did not comply with the procedural requirements of CCP section 1008(a), the Court lacks jurisdiction to consider her motion.

Plaintiff’s repeated motions to set aside a judgment that has been affirmed on appeal is frivolous. Plaintiff is advised that if she continues to file such frivolous motions the Court may consider issuing an Order To Show Cause why Plaintiff should not be declared a vexatious litigant.