Case Name: Cynthia Swinehart vs Google, Inc.

Case No.: 16CV296069

On April 5, 2019, the Court issued its order granting the motion by Google to dismiss the action due to the failure by Plaintiff to amend her complaint to state a valid claim. Judgment in favor of Google was entered that same day. On July 16, 2019, Plaintiff’s first motion to vacate the judgment pursuant to CCP 663.6 was denied as untimely and because not supported by facts or law. The Court’s order denying that motion was entered on July 26, 2019. On August 22, 2019, Plaintiff filed her appeal from the order denying the motion to vacate. That appeal is still pending.

On October 7, 2019, Plaintiff filed her motion to vacate the judgment that had been entered on April 5, 2019, apparently on the grounds of mistake. She claims that her finger was injured which prevented her from filing a 473 motion earlier, and she was not aware of the requirement that she submit a proposed amended complaint.

The Court agrees with Defendants’ contention that it lacks jurisdiction to entertain Plaintiff’s motion because of the pending appeal on orders Plaintiff is asking this Court to reconsider. 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….’ (CCP 916(a). See also Betz v. Pankow, 16 Cal. App. 4th 931, 938, as modified on denial of reh’g (July 13, 1993); In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1427-1428.)

For this reason, and as the motion otherwise lacks merit, the motion is DENIED.

Google shall prepare the order. The Court notes that it prefers that instead of attaching the tentative ruling to the proposed order, that Google prepare an order that repeats the wording of the tentative ruling, and to incorporate any additional orders made at the hearing.