This case was last updated from Los Angeles County Superior Courts on 07/13/2016 at 09:48:12 (UTC).

LOS ANGELES UNIFIED SCHOOL DISTRICT VS ABBOTT, MARISA

Case Summary

On 06/21/2016 LOS ANGELES UNIFIED SCHOOL DISTRICT filed a Contract - Debt Collection lawsuit against ABBOTT, MARISA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7779

  • Filing Date:

    06/21/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Defendants

BROOKS KERRY

AVILA FELIPE

ANDREWS TRAVIS

BORN MICHAEL

ABBOTT MARISA

BACKES JOCELYN

BAUMAN KATHY

BARDALES CINDY

AZIZAD PARISA

BELLO CORINNE

ALOISI DAVID

BOWEN MARY

ANYAKA STEPHEN

CALOF JAN

BECK SHARON

ALLAHJAH YUSUF

BRITTON DOUGLAS

CANCHOLA SANDRA

ASCENCIO BERTHA

AYURA ADELA JOY

5 More Parties Available

Attorney/Law Firm Details

Other Attorneys

OFFICE OF THE GENERAL COUNSEL LAUSD

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 06/23/2016
  • NON-JURY TRIAL SET FOR 12/21/17, 08:30 AM, DEPT 77

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  • 06/22/2016
  • OSC SET 06/21/19, 08:30 AM, DEPT. 77 PURSUANT TO GENERAL ORDER

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  • 06/22/2016
  • A/C - COMPLAINT FILED

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  • 06/21/2016
  • COMPLAINT FILED - OTHER COLLECTION CASE

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  • 06/21/2016
  • SUMMONS FILED

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  • 06/21/2016
  • FEE WAIVER ENTERED - GC 6103

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Tentative Rulings

Case Number: 16K07779    Hearing Date: September 03, 2020    Dept: 25

HEARING DATE:   Thu., September 3, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: LAUSD v. Abbott, et al. COMPL. FILED: 06-21-16

CASE NUMBER: LAM16K07779 DISC. C/O: NONE

NOTICE:   NO (see discussion below) DISC. MOT. C/O:    NONE

TRIAL DATE: NOT SET

PROCEEDINGS    MOTION FOR MANDATORY DISMISSAL FOR DELAY IN PROSECUTION

MOVING PARTY:   Defendant Mojgan Mikail, in pro per

RESP. PARTY: Plaintiff Los Angeles Unified School District  

MOTION TO DISMISS

(CCP § 583.250)

TENTATIVE RULING:

Defendant Mojgan Mikail’s Motion to Dismiss is GRANTED. The entire action is HEREBY DISMISSED pursuant to Code of Civil Procedure section 583.250.

SERVICE

[   ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[   ] Correct Address (CCP §§ 1013, 1013a) NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: Filed on August 28, 2020 [X] Late [   ] None

REPLY: None filed as of September 1, 2020    [   ] Late [X] None

ANALYSIS:

  1. Background

On June 21, 2016, Plaintiff Los Angeles Unified School District (“Plaintiff”) filed an action for recovery of money paid by mistake, money had and received, money paid, and open book against 177 defendants, including Defendant Mojgan Mikail (“Mikail”). On January 2, 2019, Defendant Dulcinea Dionecia Echegoyen (“Echegoyen”), in pro per, filed a Notice of Stay of Proceedings due to her Chapter 7 Bankruptcy Petition filed on December 20, 2018. (1/2/19 Notice of Stay of Proceedings.)

Plaintiff filed a proof of service on March 3, 2020 demonstrating that Defendant Mikail was personally served with the Summons and Complaint on January 16, 2020. (3/3/20 Proof of Service.)

On February 27, 2020, Defendant Mikail filed the instant Motion to/for Mandatory Dismissal for Delay in Prosecution (the “Motion”). No opposition was filed.

At the initial hearing on June 22, 2020, the Court noted several deficiencies in Defendant Mikail’s proof of service and expressed concern that Plaintiff had not been properly served with the Motion. (6/22/20 Minute Order.) The Court also found that Defendant Mikail had not addressed whether the mandatory 3-year service period was tolled by the Notice of Stay filed on January 2, 2019, tolled by impossibility or impracticability, or otherwise tolled under any other ground listed in Code of Civil Procedure section 583.240. (Id.) The Court ordered Defendant Mikail to file and serve supplemental papers addressing these points at least 16 court days before the next scheduled hearing. (Id.)

On August 17, 2020, Defendant Mikail filed Supplemental Papers in Support of Mandatory Dismissal for Delay in Prosecution. Plaintiff thereafter filed an Opposition to the Motion on August 28, 2020. No reply brief has been filed.

  1. Legal Standard

Code of Civil Procedure section 583.210 provides:

“(a) The summons and complaint shall be served upon defendant within three years after the action is commenced against the defendant. For purposes of this subdivision, an action is commenced at the time the complaint is filed.”

(Code Civ. Proc., § 583.210, subd. (a).) (Emphasis added.)

Code of Civil Procedure section 583.250 provides:

“(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

(Code Civ. Proc., § 583.250, subd (a)-(b).) (Emphasis added.)

In computing the time within which service must be made, the following four conditions will cause tolling of the three-year period:

“(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.”

(Code Civ. Proc., § 583.240, subds. (a)-(d).)

  1. Discussion   

A. Service of the Moving and Supplemental Papers

 

In Opposition, Plaintiff argues the Court should deny Defendant Mikail’s motion because she failed to file an amended proof of service as requested by the Court on June 22, 2020, because her supplemental papers were filed less than 16 court days before the hearing, and because the supplemental papers do not include a proof of service demonstrating they were properly served on Plaintiff. (Oppo., pp. 2:22-3:6.)

Because Defendant Mikail did not file an amended proof of service as requested and because she filed her supplemental papers only 13 court days before the scheduled hearing, she is admonished for failing to obey the Court’s order. However, Plaintiff does not deny receiving Defendant Mikail’s Motion and Supplemental Papers. Importantly, “[i]t is well-settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Because Plaintiff has filed an opposition to Defendant Mikail’s Motion and Supplemental Papers on the merits, it has waived any challenges to deficiencies in notice. Thus, the Court proceeds to make a ruling on the merits.

 

B. Merits 

Defendant Mikail moves the Court for an order dismissing this action pursuant to Code of Civil Procedure sections 583.210 and 583.250. (Mot., p. 1:16-21.) As noted above, this action was filed on June 21, 2016. Unless the mandatory three-year period to serve the defendants in this action was tolled by Section 583.240, Defendant Mikail must have been served with process no later than June 21, 2019. (Code Civ. Proc., § 583.250, subd (a)-(c).)

In her supplemental papers, Defendant Mikail argues that a notice of stay filed regarding one defendant does not toll or extend the time period to serve other defendants in the action. (8/17/20 Supp. Papers, p. 3:8-14.) The Court agrees. In Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 980-81, the Court held that a notice of automatic stay regarding one defendant’s bankruptcy petition is only applicable to the debtor defendant, not any other non-debtor codefendants. In so holding, the Court noted that although plaintiff filed a notice of stay indicating the stay applied to “all parties,” the notice, prepared by plaintiff, was not a court order staying the entire action. (Id.) As a result, because the non-debtor defendant was served more than three years after the action was filed, dismissal was mandatory. (Id. at p. 978.)

Similarly, here, Defendant Echegoyen herself filed a Notice of Stay of Proceedings on judicial council form CM-180 on January 2, 2019 following her Chapter 7 Bankruptcy Petition filing. (1/2/19 Notice of Stay of Proceedings.) Although Defendant Echegoyen checked off the box on the form indicating the stay applied to all parties, the Notice of Stay of Proceedings, prepared by Defendant Echegoyen, did not amount to a Court order staying the proceedings as to all defendants in this action. (See Higgins v. Superior Court, supra, 15 Cal.App.5th  at 980-81.) Plaintiff’s opposition argues the stay did toll the service period, but does not cite any authority for its position. Thus, the Court finds that the Notice of Stay of Proceedings did not stay the entire action or otherwise prevent Plaintiff from serving Defendant Mikail with process.

Plaintiff also argues the Court’s October 25, 2018 Order reclassifying the entire case to unlimited jurisdiction deprived this Court of jurisdiction over the parties, and thus Defendant Mikail was no longer amenable to process. (Oppo., pp. 3:20-4:1.) Although the Court ordered the entire action reclassified, the reclassification fee was never paid so the matter proceeded in this civil limited jurisdiction court. (2/13/19 Minute Order.) In any case, it is unclear why reclassification would deprive the Court of jurisdiction over the parties. It appears that Plaintiff is arguing this Department was deprived of jurisdiction when the action was tentatively reclassified. However, the California State Constitution provides for one superior court in each county, so “jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof” and “whether sitting separately or together, the judges hold but one and the same court. [Citation.]” (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1482-83.) Thus, the Court is not persuaded by Plaintiff’s argument that the Court did not have jurisdiction over Defendant Mikail.

Plaintiff additionally argues that because the case was never assigned a new unlimited jurisdiction case number, the case “remained in limbo for nearly 17 months and thereby toll[ed] the three-year statute.” (Oppo., p. 4:11-15.) However, a new case number need not be assigned when an action is reclassified from unlimited jurisdiction to limited jurisdiction or vice versa. Plaintiff does not provide any authority demonstrating otherwise. Thus, the Court is unpersuaded the three-year statute was tolled on this basis. 

Because the Court finds that the three-year statute to serve Defendant Mikail with process was not tolled, Plaintiff should have served her no later than June 21, 2019. As Defendant Mikail was not served with the Summons and Complaint until January 16, 2020, more than six months after the three-year statute expired, dismissal of the action is mandatory pursuant to Code of Civil Procedure section 583.250.

  1. Conclusion & Order

For the foregoing reasons, Defendant Mojgan Mikail’s Motion to Dismiss is GRANTED. The entire action is HEREBY DISMISSED pursuant to Code of Civil Procedure section 583.250.

Moving party is ordered to give notice.

Case Number: 16K07779    Hearing Date: June 22, 2020    Dept: 25

MOTION TO DISMISS

(CCP § 583.250)

PROCEEDINGS    (2) MOTION FOR LEAVE TO FILE CROSS-COMPLAINT 

MOVING PARTY:   Defendant Aurora Le Mere

RESP. PARTY: Plaintiff Los Angeles Unified School District  

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP § 428.50)

TENTATIVE RULING:

(1) Defendant Mojgan Mikail’s Motion to Dismiss is CONTINUED TO SEPTEMBER 3, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Mikail must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion to Dismiss being placed off calendar or denied.

(2) Defendant Le Mere’s Motion for Leave to File Cross-Complaint is GRANTED. Proposed Cross-Complaint, with corrections as noted herein, is to be filed within ten (10) days of this order.

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Motion to Dismiss

OPPOSITION: None filed as of June 17, 2020 [   ] Late [X] None

REPLY: None filed as of June 17, 2020 [   ] Late [X] None

Motion to For Leave to File Cross-Complaint 

OPPOSITION: Filed on June 9, 2020 [   ] Late [   ] None

REPLY: Filed on June 15, 2020 [   ] Late [   ] None

ANALYSIS:

  1. Background

On June 21, 2016, Plaintiff Los Angeles Unified School District (“Plaintiff”) filed an action for recovery of money paid by mistake, money had and received, money paid, and open book against 177 defendants, including Defendants Mojgan Mikail (“Mikail”) and Aurora Le Mere (“Le Mere”) (collectively, “Defendants”). On May 10, 2018, Defendant Le Mere filed an Answer.

On January 21, 2020, Defendant Le Mere filed the instant Motion for Leave to File Cross-Complaint (the “Motion for Leave”). On June 9, 2020, Plaintiff filed an Opposition and on June 15, 2020, Defendant Le Mere filed a Reply.

In addition, on February 27, 2020, Defendant Mikail filed the instant Motion to/for Mandatory Dismissal for Delay in Prosecution (the “Motion to Dismiss”). To date, no opposition has been filed.

  1. Motion to Dismiss

Defendant Mikail moves the Court for an order dismissing this action pursuant to Code of Civil Procedure sections 583.210 and 583.250. (Mot. to Dismiss, p. 1:16-21.)

Code of Civil Procedure section 583.210 provides:

“(a) The summons and complaint shall be served upon defendant within three years after the action is commenced against the defendant. For purposes of this subdivision, an action is commenced at the time the complaint is filed.”

(Code Civ. Proc., § 583.210, subd. (a).) (Emphasis added.)

Code of Civil Procedure section 583.250 provides:

“(a) If service is not made in an action within the time prescribed in this article:

(1) The action shall not be further prosecuted and no further proceedings shall be held in the action.

(2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.

(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”

(Code Civ. Proc., § 583.250, subd (a)-(c).) (Emphasis added.)

In computing the time within which service must be made, the following four conditions will cause tolling of the three-year period:

“(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff’s control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of this subdivision.”

(Code Civ. Proc., § 583.240, subds. (a)-(d).)

Here, Defendant Mikail argues that because this action was filed on June 21, 2016, but not served until January 26, 2020, dismissal for failure to serve the summons and complaint within the statutorily required three years is mandatory. (Mot. to Dismiss, p. 2:5-7, 13-16.) Although Defendant Mikail was served more than three years after the Complaint was filed, he does not address whether the service period was tolled by the Notice of Stay filed on January 1, 2019, terminated on February 28, 2020, whether service was otherwise impossible or impracticable due to the large number of defendants involved in this case, or otherwise tolled under any other ground listed in Code of Civil Procedure section 583.240.  

In addition, the Court notes several issues with the proof of service filed by Defendant Mikail. First, Code of Civil Procedure section 1013a requires that the proof of service be signed by a person over 18 years of age and not a party to the action. (Code Civ. Proc., § 1013a, subd. (1).) (Emphasis added.) Defendant Mikail signed the proof of service for the Motion to Dismiss himself, despite language on the form indicating that the signatory declares under penalty of perjury that he is not a party to this action. (Mot. to Dismiss, Proof of Service, ¶ 1.) In addition, the proof of service does not set forth the name of the person served, and instead just indicates he served the “Office of General Counsel.” (Id. at ¶ 5.) Based on this, it is unclear whether Plaintiff was properly served with this Motion to Dismiss and given an opportunity to file an opposition.

For these reasons, Defendant Mikail is ordered to file supplemental papers addressing the tolling issue and a supplemental proof of service demonstrating Plaintiff was properly served with the moving and supplemental papers.

  1. Motion for Leave to File Cross-Complaint

Defendant Le Mere seeks leave to file a cross-complaint pursuant to Code of Civil Procedure sections 426.50 and 428.50. (Mot. for Leave, p. 3:12-24.)

If a defendant’s cause of action against a plaintiff is related to the subject matter of the complaint, then defendant must file a cross-complaint or he will be barred from asserting it in a later action. (Code Civ. Proc., § 426.30, subd. (a).) If a party does not file a compulsory cross-complaint concurrently with an answer, or any other cross-complaint before the court has set a date for trial, then the party seeking to file a cross-complaint must obtain leave of court to do so, which may be granted in the interest of justice at any time during the course of the action. (Code Civ. Proc., § 428.50, subds. (a)-(c).)

 

In addition, Code of Civil Procedure section 426.50, provides:

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause, if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

(Emphasis added.)

Here, because Defendant Le Mere’s claims against Plaintiff arise out of her employment with LAUSD, and her employment with LAUSD is the basis for Plaintiff’s Complaint, the proposed Cross-Complaint is compulsory. (Code Civ. Proc., § 426.10, subd. (c).) Defendant argues that Defendant’s counsel engaged in a lengthy review of numerous boxes of evidence spanning fourteen years of employment with Plaintiff. (Mot. for Leave, p. 4:8-12, Spoors Decl., ¶ 3.) After recently reviewing the files a second time as well as the cross-complaint filed by Co-Defendant Roshini Das, Defendant Le Mere’s counsel argues he discovered, for the first time, that evidence exists to support a claim for unpaid wages and declaratory and injunctive relief. (Id. at ¶ 3, Exh. 1.)    

In Opposition, Plaintiff first argues that the Motion for Leave should be denied because Defendant Le Mere failed to properly serve it with the Motion and Notice of Motion. (Oppo., p. 4:3-6, Beckles Decl., ¶ 3.) However, Defendant Le Mere filed a proof of service demonstrating that on January 20, 2020, Plaintiff was served with the Motion for Leave via regular mail. (6/11/20 Proof of Service.) In addition, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Thus even if a proof of service had not been filed, because Plaintiff filed an opposition to the Motion for Leave, it waived any challenges to deficiencies of notice.

Plaintiff also argues that the Motion should be denied because it fails to include a supporting declaration as required by California Rules of Court, rule 3.124, subdivision (b). (Oppo., p. 4:22-28.) Although, Rule 3.124 does not exist, based on the language quoted, the Court infers that Plaintiff likely intended to reference Rule 3.1324. However, the requirements of Rule 3.1324 apply to motions to amend pleadings, not motions for leave to file a cross-complaint, and is thus inapplicable here.

Finally, Plaintiff argues that Defendant Le Mere did not assert sufficient facts to justify her delay in seeking to file the proposed cross-complaint. (Oppo., p. 5:22-6:5.) It also suggests that Defendant Le Mere is acting improperly in basing her proposed Cross-Complaint on another Defendant’s pleadings and argues Defendant Le Mere did not carry her burden to establish that the “proposed amendments are necessary and proper.” (Mot., p. 6:22-25.) As noted above, Defendant Le Mere is not attempting to amend a pleading with this Motion for Leave. In addition, Defendant does not have to establish that a cross-complaint is “necessary and proper” for the Court to grant relief.

Indeed, a motion to file a compulsory cross-complaint “at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.” (Silver Organizations LTD v. Frank (1990) 217 Cal.App.3d 94, 99.) (Emphasis added.)

Bad faith “generally [implies] or [involves] actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or contractual obligation, not prompted by an honest mistake..., but by some interested or sinister motive[,]…not simply bad judgment or negligence, but rather…the conscious doing of a wrong because of dishonest purpose or moral obliquity…[Citation.]” (Id. at p. 100.) Here, Plaintiff has not argued or demonstrated that Defendant Le Mere has acted in bad faith by filing the instant Motion for Leave. At most, it appears that Defendant Le Mere’s counsel did not realize the facts of his client’s case supported an action against Plaintiff when he reviewed the file the first time. “[O]versight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny a motion unless accompanied by bad faith.” (Id. at 99.) Having reviewed the moving and opposing papers, the Court discerns no bad faith on the part of Defendant Le Mere in seeking to file the proposed Cross-Complaint.

However, in a limited jurisdiction court, a request for declaratory relief is only permitted by way of cross-complaint as to a right of indemnity with respect to relief demanded in the complaint, or to conduct trial after a non-binding arbitration proceeding. (Code Civ. Proc., § 86, subd. (7).) Similarly, injunctive relief is only permitted as set forth in Code of Civil Procedure, section 86, subdivision (8).) Thus, should Defendant Le Mere wish to remain in limited jurisdiction, she must revise her proposed Cross-Complaint accordingly.

Defendant Le Mere’s Motion for Leave is GRANTED.  

  1. Conclusion & Order

For the foregoing reasons:

(1) Defendant Mojgan Mikail’s Motion to Dismiss is CONTINUED TO SEPTEMBER 3, 2020 at 10:20 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Mikail must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

(2) Defendant Le Mere’s Motion for Leave to File Cross-Complaint is GRANTED. Proposed Cross-Complaint, with corrections as noted herein, is to be filed within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 16K07779    Hearing Date: March 03, 2020    Dept: 25

MOTION TO SEVER

(CCP § 1048(b))

TENTATIVE RULING:

Plaintiff Los Angeles Unified School District’s Motion to Sever is GRANTED. In addition, Defendant Roshini Das’ request for sanctions is DENIED.

OPPOSITION: Filed on February 18, 2020

REPLY: Filed on February 25, 2020 

ANALYSIS:

  1. Background

On June 21, 2016, Plaintiff Los Angeles Unified School District (“Plaintiff”) filed an action for recovery of money paid by mistake, money had and received, money paid, and open book against 177 defendants, including Roshini Das (“Defendant Das”). On July 11, 2018, Defendant Das filed an Answer and a Cross-Complaint seeking statutory penalties under Labor Code sections 203 and 226, for violation of unfair competition laws, and for declaratory and injunctive relief. On August 23, 2018, Defendant Das filed a First Amended Complaint (“FACC”).

On September 10, 2018, Plaintiff filed a Demurrer to Defendant Das’ Cross-Complaint. On October 25, 2018, in lieu of the hearing on the Demurrer, the Court reclassified the entire action as a civil unlimited jurisdiction case. (10/25/18 Minute Order.) On December 12, 2018, the Court set an OSC Hearing re: Failure to Pay Reclassification Fee for February 13, 2019. (12/12/18 Minute Order.)

On January 2, 2019, Defendant Dulcinea Echegoyen (“Defendant Echegoyen”) filed a Notice of Stay of Proceedings (the “Stay”) with regard to all parties due to her bankruptcy filing. (1/2/19 Notice of Stay.)

On February 13, 2019, the Court found that Defendant Das failed to pay the reclassification fee and thus struck the request for declaratory and injunctive relief from her FACC. (2/13/19 Minute Order.) The reclassification fee was paid on February 27, 2019.  

On July 31, 2019, Plaintiff’s Demurrer as to Defendants FACC was overruled. (7/31/19 Minute Order.) In addition, the Court exercised its discretion and granted Defendant Das leave to re-add his request for declaratory and injunctive relief to the FACC. (Id.)

On October 28, 2019, the Court denied Plaintiff’s Ex Parte Application to Sever the Action Pending Against Defendant and Cross-Complainant Das, or in the Alternative to Shorten Time to Hear Plaintiff’s Motion to Sever the Action Pending Against Defendant and Cross-Complainant. (10/28/19 Minute Order.) The Court also noted that there had been no update on the Notice of Stay of Proceedings filed on January 2, 2019 and set a Status Conference re: Bankruptcy for March 3, 2020. (Id.) Further, the Court stated that “[t]he matter is to remain in Limited Jurisdiction until further order from this court.” (Id.)

On January 31, 2020, Plaintiff filed the instant Motion to Sever the Action Pending Against Defendant and Cross-Complainant Roshini Das (the “Motion”). On February 18, 2020, Defendant Das filed an Opposition and on February 25, 2020, Plaintiff filed a Reply.

On February 28, 2020, Plaintiff filed a Notice of Termination of Stay demonstrating Defendant Echegoyen’s bankruptcy had been discharged on April 1, 2019.

  1. Legal Standard

Code of Civil Procedure section 1048 provides that “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Section 1048 authorizes the separation of issues when it can be done without prejudice to a substantial right. (Bratton & Moretti v. Finerman & Son (1959) 171 Cal.App.2d 430, 435.)

“Whether separate actions shall be consolidated for trial, or whether there shall be severance and separate trials of issues in a single action, is a matter within the discretion of the trial court. [Citation.]” (Mellone v. Lewis (1965) 233 Cal.App.2d 4, 7.)

  1. Discussion

  1. Motion to Sever

Here, Plaintiff requests that the action pending against Defendant Das be severed from the action pending against the remaining defendants because reclassifying the entire action to unlimited jurisdiction would prejudice Plaintiff. (Mot., p 3.) Specifically, Plaintiff argues that Defendant Das is procedurally situated differently than the other defendants, as she seeks unpaid overtime under the Fair Labor Standards Act and declaratory and injunctive relief, and none of the other defendants seek the same. (Id. at p. 5.) In addition, Plaintiff argues that severing the action pending against Defendant Das would promote efficient litigation as the remaining defendants would only be allowed to engage in limited discovery instead of numerous defendants engaging in voluminous discovery as permitted in unlimited jurisdiction. (Id. at p. 6.)

In opposition, Defendant Das argues that Plaintiff’s Motion to Sever should be stricken because it was filed in willful violation of the stay filed by Defendant Echegoyen. (Oppo. p. 6.) He further argues that Plaintiff was required to give notice of the automatic stay, and that Plaintiff failed to serve notice on the Court and all parties.

California Rules of Court, rule 3.650 states, in pertinent part:

“The party who requested or caused a stay of a proceeding must immediately serve and file a notice of the stay and attach a copy of the order or other document showing that the proceeding is stayed. If the person who requested or caused the stay has not appeared, or is not subject to the jurisdiction of the court, the plaintiff must immediately file a notice of the stay and attach a copy of the order or other document showing that the proceeding is stayed. The notice of stay must be served on all parties who have appeared in the case.”

(Cal Rules of Court, rule 3.650.)

Here, Defendant Echegoyen had not yet appeared in the action when she filed the Stay on January 2, 2019. Indeed, Plaintiff had filed a request for entry of default against Defendant Echegoyen on October 30, 2018. Thus, Plaintiff was required to give notice. However, it is unclear whether Plaintiff actually received notice of the Stay, as no proof of service is attached to the notice filed by Defendant Echegoyen. Indeed, Plaintiff states that the first time it was made aware the Stay was in effect was during the October 28, 2019 hearing on Plaintiff’s Ex Parte Application. (Reply, p. 3.) Notably, both parties engaged in law and motion practice between January 2, 2019 and October 28, 2019, and the Court did not raise the issue of the Stay during any of the hearings held.

In addition, Defendant Das argues that severance would prejudice the remaining defendants and would result in a waste of judicial resources. (Oppo., p. 6.) Specifically, she argues that, should Defendant Das be successful, it would bar Plaintiff’s recovery of wages against all remaining defendants. (Oppo. p. 6-7.) The Court disagrees. No other defendant has filed a cross-complaint asserting similar causes of action against Plaintiff. Reclassifying the entire action may needlessly prolong the resolution against the remaining defendants due to Defendant Das’ unlimited jurisdiction claims.

Given the number of defendants in this action, that Defendant Das’ FACC alleges causes of action that are unique to herself, and that the Stay has been lifted, the Court GRANTS Plaintiff’s Motion to Sever. 

  1. Defendant Das’ Request for Sanctions   

Relying on 11 U.S.C. section 362, Defendant Das’ Opposition requests that the Court award attorney’s fees incurred in opposing this Motion. (Oppo. p., 9.) Section 362 states, in relevant part:

“(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of (1) the commencement or continuation, including the issuance of employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against a debtor that arose before the commencement of the case under this title.

“(k)(1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.

(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.

However, Defendant Das has not demonstrated how why the statute would apply to her, as she is not a debtor who filed a petition for bankruptcy. In addition, Defendant Das has not supported with legal authority, that the federal statute, asserted by a defendant who did not file a bankruptcy petition herself, is applicable in state court.

Thus, Defendant Das’ request for sanctions is DENIED.

  1. Conclusion & Order

For the foregoing reasons Plaintiff Los Angeles Unified School District’s Motion to Sever is GRANTED. In addition, Defendant Roshini Das’ request for sanctions is DENIED.

Moving party is ordered to give notice.