Case Number: 30201500790365 Hearing Date: January 21, 2020 Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

ernest calhoon ;

Plaintiff,

vs.

mia mejia , et al.,

Defendants.

Case No.:

30-2015-00790365

Hearing Date:

January 21, 2020

Time:

8:30 a.m.

[Tentative] Order RE:

motion to set aside void judgment

MOVING PARTY: Plaintiff Ernest Calhoon

RESPONDING PARTY: Defendants County of Orange, Michael Wagner, and Ryan Gish

Motion to Set Aside Void Judgment

The court considered the moving, opposition, and reply papers. Defendants Mia Mejia, Lon Hurwitz, and Donald Gaffney filed a notice of joinder in opposition to the motion.

Background

On May 22, 2015, plaintiff Ernest Calhoon (“Calhoon”) filed this action in Orange County Superior Court against defendants Mia Mejia, Michael Wagner, County of Orange, and Orange County Sheriff’s Department.

On December 7, 2015, pursuant to Government Code section 69740, the Presiding Judge of the Orange County Superior Court assigned this case to Los Angeles Superior Court Judge Howard L. Halm, pursuant to the State Administrative Office of the Courts Reciprocal Agreement Order R-453-15.

The Second Amended Complaint (“SAC”) was deemed filed on November 17, 2016. (Minute order, filed September 12, 2017, p. 3.)

The SAC includes the following defendants: Mia Mejia (“Mejia”), Michael Wagner (“Wagner”), the County of Orange, the State of California, Lon Hurwitz, Donald Gaffney, and Ryan Gish (erroneously named “Deputy Giss”) (“Gish”).[1] The causes of action are for “(1) Libel; (2) Libel; (3) Intrusion; (4) Intentional Infliction of Emotional [sic]; (5) Assault and Battery and False Imprisonment; (6) Violation of Civil Rights.” In the SAC, Calhoon alleges the following:

– Calhoon attempted to file documents “on demand” for a client of his, but the filing of the documents was denied by Mejia, a clerk of the Juvenile Dependency Court in the County of Orange. (SAC, ¶ 1.)

– After such denial, Mejia falsely alleged that Calhoon gave her a death threat with a firearm, and summoned the courthouse bailiffs under the guise that Calhoon threatened to kill her with a gun. (SAC, ¶ 2.) Calhoon claims Mejia’s false statement and summoning of the bailiffs constituted defamation that damaged Calhoon’s reputation, image, and ability to practice law. (SAC, ¶ 2.)

– Mejia later published the statement through word of mouth among other employees of the courthouse, including the Hon. Lon Hurwitz and the Hon. Donald Gaffney. Such conduct implicates the County of Orange for failure to hire/fire/train/discipline staff. (SAC, ¶ 3.)

On October 27, 2017, the court (Judge Halm) issued an order ruling on motions filed by various defendants addressed to the SAC, among other motions. In that order, the court (1) sustained the County of Orange and Wagner’s demurrer to the entirety of the SAC, without leave to amend, (2) sustained the Judicial Branch Defendants’ demurrer to the entirety of the SAC, without leave to amend, (3) sustained Gish’s demurrer to the entirety of the SAC, without leave to amend, (4) denied Calhoon’s motion to reconsider the court’s June 28, 2016 order granting a discovery motion filed by the County of Orange and Wagner, (5) denied Calhoon’s motion pursuant to Code of Civil Procedure section 473, subdivision (b) to set aside the court’s June 28, 2016 order, (6) denied Calhoon’s motion to reconsider and vacate the court’s December 20, 2016 order granting, in part, the County of Orange and Wagner’s motion for terminating sanctions, (7) denied Calhoon’s request to continue or re-set hearings for various missing[2] motions, (8) denied Calhoon’s various motions to transfer venue, and (9) struck Calhoon’s request to recuse or disqualify Judge Halm.

On November 16, 2017, Calhoon filed a motion for reconsideration of the October 27, 2017 order. On November 28, 2017, the court signed and filed orders dismissing the SAC as to the County Defendants and the Judicial Branch Defendants with prejudice. Calhoon’s motion for reconsideration was denied on January 4, 2018. Calhoon was not present at the January 4, 2018 hearing. However, at some point later that day, Calhoon appeared in Department 53 and was given a copy of the court’s tentative ruling and the minute order. (January 4, 2018 Minute Order.) On January 29, 2018, Calhoon filed a notice of appeal. (Schwartz Decl., ¶¶ 2, 30, Exh. A.) Judgment in favor of the Judicial Branch Defendants was entered on January 23, 2018. Judgment in favor of the County Defendants was entered on February 5, 2018.

On July 5, 2019, Calhoon filed a “Motion to Fax File Faxed Documents Including 5/11/17 Nunc Pro Tunc to 5/11/17, and November 17, 2016, to November 27, 2016, Among Others, Also Under File on Demand Law to File on Demand and Due Process (and Also, If Necessary, re: Filing of Original Timely CCP 1008(a) Motion to Reconsider Set for Hearing and Going Forward Without My Presence Due to My Own Fault, So Resetting Same Hearing Based Upon Timely 7/5/18 Fax Filed CCP 473 Motion Also to Be Filed Nunc Pro Tunc and Vacate Orders and Set for Hearing.” The court construed Calhoon’s July 5, 2019 motion as one for reconsideration of the October 27, 2017 order or, in the alternative, one for relief from the judgments entered in favor of the Judicial Branch Defendants and the County Defendants. (Order re: Motion to Fax File and Demurrer to the Third Amended Complaint, filed September 24, 2019, p. 5:4-9.) On September 27, 2019, the court issued an order denying Calhoon’s motion to fax file (construed as a motion for reconsideration or a motion for relief from judgment).

On October 24, 2019, Calhoon filed a “Motion to Set Aside Void Judgment” pursuant to Code of Civil Procedure section 473, subdivision (d). On December 10, 2019, the court issued an order denying Calhoon’s motion on the ground that, because an appeal from the judgments Calhoon sought relief from had already been taken and was still pending, the court did not have jurisdiction to vacate the judgments until the appeal is completed and the Court of Appeal issues a remittitur. (Order Motion to Set Aside Void Judgment, filed December 10, 2019, p. 5:15-17.)

Calhoon now moves for an order vacating the judgments entered in favor of the Judicial Branch Defendants and the County Defendants on the ground that the judgments are void. Calhoon brings this motion pursuant to Code of Civil Procedure section 473, subdivision (d). The County Defendants oppose the motion. The Judicial Branch Defendants have filed a notice of joinder in opposition to the motion.

request for judicial notice

The court denies Calhoon’s request for judicial notice in its entirety because the request does not comply with California Rules of Court, rule 3.1113(l), which requires that any request for judicial notice must be made in a separate document listing the specific items for which notice is requested.

DISCUSSION

Calhoon again seeks relief pursuant to Code of Civil Procedure section 473, subdivision (d), from the judgments entered in favor of the Judicial Branch Defendants and the County Defendants. As the court explained in its September 24, 2019 order denying Calhoon’s Motion to Fax File, and in its December 10, 2019 order denying Calhoon’s Motion to Set Aside Void Judgment, the court cannot grant the relief requested in Calhoon’s motion because an appeal from those judgments has already been taken and is still pending. The court takes judicial notice that Calhoon’s appeal from the judgments entered in favor of the Judicial Branch Defendants and the County Defendants is presently pending in the Fourth Appellate District, Division 3, Court of Appeal Case No. G055915. In light of the pending appeal, this court does not have jurisdiction to vacate the judgments entered in favor of the Judicial Branch Defendants and the County Defendants until the appeal is completed and the Court of Appeal issues a remittitur. (See Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [“As a general rule, the perfecting of an appeal stays [the] proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order . . . . [citation]. The trial court’s power to enforce or modify an appealed judgment or order is suspended while the appeal is pending.” (internal quotations omitted)]; see also Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 [any proceeding “directly or indirectly seek[ing] to ‘enforce, vacate or modify [the] appealed judgment or order[ ]’” is subject to the automatic stay imposed by Code of Civil Procedure section 916].)

The court notes that Calhoon, in his reply memorandum, requests that the court continue the hearing on this motion “until a date beyond when the remittitur is issued . . . .” (Reply, p. 6:19-21.) The court finds that Calhoon has not shown good cause to continue the hearing on this motion. The court therefore denies Calhoon’s request.

ORDER

For the reasons set forth above, the court denies plaintiff Ernest Calhoon’s motion to set aside void judgment.

The court orders defendants County of Orange, Michael Wagner, and Ryan Gish to give notice of this ruling.

IT IS SO ORDERED.

DATED: January 21, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court

[1] Defendants the County of Orange, Wagner, and Gish will be referred to collectively, when appropriate, as the County Defendants. Defendants Mejia, the Hon. Lon Hurwitz, and the Hon. Donald Gaffney will be referred to collectively, when appropriate, as the Judicial Branch Defendants.

[2] Calhoon asserted that he had fax filed various motions, but that they were rejected or misplaced by the clerk’s office.