RENATO C FABIAN VS CITY OF LOS ANGELES

Tentative Rulings

Case Number: 19STLC08902    Hearing Date: April 8, 2021    Dept: 25

HEARING DATE:    Thu., April 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Fabian v. City of Los Angeles COMPL. FILED: 09-27-20

CASE NUMBER: 19STLC08902 DISMISSAL: 12-03-20

PROCEEDINGS: MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:   Plaintiff Renato Fabian

RESP. PARTY: None

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Renato Fabian’s Motion to Set Aside Dismissal is GRANTED. The dismissal entered on December 3, 2020 is HEREBY VACATED. PLAINTIFF IS ORDERED TO PAY THE RECLASSIFICATION FEE 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

OPPOSITION: None filed as of April 6, 2021 [   ] Late [X] None

REPLY: None filed as of April 6, 2021 [   ] Late [X] None

ANALYSIS:

1. Background

On September 27, 2019, Plaintiff Renato Fabian (“Plaintiff”) filed an action for breach of contract and reinstatement of a 2.75% salary increase against Defendant City of Los Angeles (“Defendant”).

On November 13, 2019, Defendant filed a demurrer to Plaintiff’s Complaint. The Court placed the demurrer off calendar after finding this limited jurisdiction court did not have authority to issue a mandate against a public entity or declaratory relief as prayed for in Plaintiff’s Complaint. (7/6/20 Minute Order.) The action was also reclassified as a writs and receivers case. (Id.)

On November 5, 2020, the Court issued a Nunc Pro Tunc order, striking the language in the July 6, 2020 Order reclassifying the action as a writs and receivers case, and replacing it with language reclassifying the action as a civil unlimited jurisdiction action. (11/5/20 Minute Order.) The Court also noted the reclassification fees had not yet been paid and set an OSC re Plaintiff’s Failure to Pay Reclassification Fees for December 3, 2020. (Id.)

Plaintiff did not appear at the December 3 OSC hearing. (12/3/20 Minute Order.) The Court found that Plaintiff failed to prosecute the case and thus ordered the entire case dismissed without prejudice. (Id.)

Plaintiff filed the instant Motion to Set Aside Dismissal (the “Motion”) on January 21, 2021. No opposition has been filed.

1. Legal Standard & Discussion

Plaintiff seeks relief pursuant to Code of Civil Procedure section 473, subdivision (b). (Mot., pp. 1-2.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

Plaintiff’s Motion is timely. He seeks to set aside the dismissal entered on December 3, 2020 due to Plaintiff’s counsel’s mistake and inadvertence. (Mot., pp. 1-2.) Specifically, Plaintiff’s counsel explains that in mid-July, he instructed his assistant to inquire what the fee for transferring the case to a different county would be. (Mot., Newton Decl., ¶ 2.) After not hearing back from the clerk his assistant initially spoke to, he called again on August 4, 2020 and was informed transfer fees were $50.00 and that the check should be mailed to 111 North Hill Street, Los Angeles, CA 90012 c/o Transfer Clerk. (Id. at ¶ 3.) He states a $50.00 check was mailed to the court in or about September 2020. (Id. at ¶ 4.) Counsel further explains that in or around October 2020, his office was informed by a court clerk that the reclassification fees were actually $140.00. (Mot., Newton Decl., ¶ 5.) Plaintiff’s counsel mailed a $140.00 check to the Court on an unspecified date in October. (Id.) However, he did not write the case number on the check, so the check was returned without being processed. (Id.) He further states that in late November, Plaintiff’s counsel re-sent the check, but due to mail delays, the check did not arrive at the clerk’s office prior to the OSC hearing. (Id. at ¶ 6.) To further complicate the matter, Plaintiff’s counsel mistakenly did not calendar the December 3 OSC hearing. (Id. at ¶ 7.)

Based on the timely request to vacate the dismissal supported by an attorney affidavit of fault, the unopposed Motion is GRANTED. Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Renato Fabian’s Motion to Set Aside Dismissal is GRANTED. The dismissal entered on December 3, 2020 is HEREBY VACATED. PLAINTIFF IS ORDERED TO PAY THE RECLASSIFICATION FEE WITHIN TEN (10) DAYS OF THIS ORDER.

Moving party is ordered to give notice.

Case Number: 19STLC08902    Hearing Date: July 06, 2020    Dept: 25

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant City of Los Angeles’ Demurrer is PLACED OFF CALENDAR. The action is RECLASSIFIED as a Writs and Receivers case and transferred to the transfer/reclassification desk for collection of fees and reassignment to the Writs and Receivers Department. Plaintiff is ordered to pay the reclassification fee 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

OPPOSITION: Filed on February 3, 2020 [   ] Late [   ] None

REPLY: Filed on February 6, 2020 [   ] Late [   ] None

ANALYSIS:

1. Background & Discussion

On September 27, 2019, Plaintiff Renato Fabian (“Plaintiff”) filed an action for breach of contract and reinstatement of a 2.75% salary increase against Defendant City of Los Angeles (“Defendant”).

On November 13, 2019, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). On February 3, 2020, Plaintiff filed an Opposition and on February 6, 2020, Defendant filed a Reply.

At the initial hearing on February 13, 2020, the Court declined to consider the merits of the demurrer in light of Defendant’s lack of meet and confer declaration. (2/13/20 Minute Order.) Defendant was ordered to meet and confer with Plaintiff in person or by telephone and to file a declaration attesting to such efforts. (Id.) On March 12, 2020, Defendant filed the requested declaration.

Plaintiff alleges the worked at the Los Angeles Department of Building and Safety (“LADBS”) from January 21, 1997 through January 23, 2015 and that while he worked there, he became eligible for a 2.75% salary increase. (Compl., ¶¶ 1, 15, 18, 24.) After leaving his position with LADBS for a short period and then returning to his same position, Defendant determined he was no longer eligible for the increase and sought reimbursement of the 2.75% increase already paid to Plaintiff. (Id. at ¶ 27, 33, 42.)  

In addition to damages for the breach of contract cause of action and payment of the 2.75% increase for the period Plaintiff was allegedly deprived of that benefit, Plaintiff seeks declaratory relief. Specifically, Plaintiff seeks (1) recognition that he is not a new employee of the city merely because he transferred between one major department/division of Defendant to another and back; (2) recognition that Plaintiff has remained an active employee of Defendant from January 21, 1997 through present; (3) a declaration that the rules and regulations of the Los Angeles Board of Civil Service Commissioners supersede any part or provision of Memorandum Agreement No. 5 that is in conflict or inconsistent with those rules and regulations; (4) a declaration invalidating the overpayment interpretation of the Los Angeles City Administrative Office; and (5) reinstatement of the 2.75% salary increase. (Compl., p. 9:28-10:18.)

The Court notes that, pursuant to Code of Civil Procedure section 580, subdivision (b)(4), “[d]eclaratory relief, except as authorized by section 86” is not permissible in a limited jurisdiction court. Section 86 permits an action for declaratory relief when it is brought by way of cross-complaint or when sought to conduct a trial after a nonbinding fee arbitration between an attorney and his client. (Code Civ. Proc., § 86, subd. (a)(7).) Here, Plaintiff’s requests for a mandate against a public entity and for declaratory relief are outside the jurisdiction of this Court. (See Code Civ. Proc., §§ 85, 86, subds. (a)(7), (b).)

Accordingly, the action is reclassified as a Writs and Receivers case.

1. Conclusion & Order

For the foregoing reasons, Defendant City of Los Angeles’ Demurrer is PLACED OFF CALENDAR. The action is RECLASSIFIED as a Writs and Receivers case and transferred to the transfer/reclassification desk for collection of fees and reassignment to the Writs and Receivers Department. Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC08902    Hearing Date: July 02, 2020    Dept: 25

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant City of Los Angeles’ Demurrer is PLACED OFF CALENDAR. The action is RECLASSIFIED as a Writs and Receivers case and transferred to the transfer/reclassification desk for collection of fees and reassignment to the Writs and Receivers Department. Plaintiff is ordered to pay the reclassification fee 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

OPPOSITION: Filed on February 3, 2020 [ ] Late [ ] None

REPLY: Filed on February 6, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background & Discussion

On September 27, 2019, Plaintiff Renato Fabian (“Plaintiff”) filed an action for breach of contract and reinstatement of a 2.75% salary increase against Defendant City of Los Angeles (“Defendant”).

On November 13, 2019, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). On February 3, 2020, Plaintiff filed an Opposition and on February 6, 2020, Defendant filed a Reply.

At the initial hearing on February 13, 2020, the Court declined to consider the merits of the demurrer in light of Defendant’s lack of meet and confer declaration. (2/13/20 Minute Order.) Defendant was ordered to meet and confer with Plaintiff in person or by telephone and to file a declaration attesting to such efforts. (Id.) On March 12, 2020, Defendant filed the requested declaration.

Plaintiff alleges the worked at the Los Angeles Department of Building and Safety (“LADBS”) from January 21, 1997 through January 23, 2015 and that while he worked there, he became eligible for a 2.75% salary increase. (Compl., ¶¶ 1, 15, 18, 24.) After leaving his position with LADBS for a short period and then returning to his same position, Defendant determined he was no longer eligible for the increase and sought reimbursement of the 2.75% increase already paid to Plaintiff. (Id. at ¶ 27, 33, 42.)

In addition to damages for the breach of contract cause of action and payment of the 2.75% increase for the period Plaintiff was allegedly deprived of that benefit, Plaintiff seeks declaratory relief. Specifically, Plaintiff seeks (1) recognition that he is not a new employee of the city merely because he transferred between one major department/division of Defendant to another and back; (2) recognition that Plaintiff has remained an active employee of Defendant from January 21, 1997 through present; (3) a declaration that the rules and regulations of the Los Angeles Board of Civil Service Commissioners supersede any part or provision of Memorandum Agreement No. 5 that is in conflict or inconsistent with those rules and regulations; (4) a declaration invalidating the overpayment interpretation of the Los Angeles City Administrative Office; and (5) reinstatement of the 2.75% salary increase. (Compl., p. 9:28-10:18.)

The Court notes that, pursuant to Code of Civil Procedure section 580, subdivision (b)(4), “[d]eclaratory relief, except as authorized by section 86” is not permissible in a limited jurisdiction court. Section 86 permits an action for declaratory relief when it is brought by way of cross-complaint or when sought to conduct a trial after a nonbinding fee arbitration between an attorney and his client. (Code Civ. Proc., § 86, subd. (a)(7).) Here, Plaintiff’s requests for a mandate against a public entity and for declaratory relief are outside the jurisdiction of this Court. (See Code Civ. Proc., §§ 85, 86, subds. (a)(7), (b).)

Accordingly, the action is reclassified as a Writs and Receivers case.

1. Conclusion & Order

For the foregoing reasons, Defendant City of Los Angeles’ Demurrer is PLACED OFF CALENDAR. The action is RECLASSIFIED as a Writs and Receivers case and transferred to the transfer/reclassification desk for collection of fees and reassignment to the Writs and Receivers Department. Plaintiff is ordered to pay the reclassification fee within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC08902    Hearing Date: February 13, 2020    Dept: 25

TENTATIVE RULING:

Defendant City of Los Angeles’ Demurrer to Plaintiff’s Complaint is CONTINUED TO APRIL 27, 2020, AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file and serve a declaration demonstrating compliance with the meet and confer requirement. Failure to comply with the Court’s order may result in the Demurrer being placed off calendar or denied.

OPPOSITION: Filed on February 3, 2020 [X] Late

REPLY: Filed on February 6, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On September 27, 2019, Plaintiff Renato C. Fabian (“Plaintiff”) filed an action for breach of contract against Defendant City of Los Angeles (“Defendant”).

On November 13, 2019, Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). On February 3, 2020, Plaintiff filed a late Opposition and on February 6, 2020, Defendant filed a Reply.

1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

1. Discussion

As an initial matter, the Court notes that Defendant’s Demurrer is not accompanied by a declaration setting forth any efforts to meet and confer with Plaintiff before filing this motion as required by Code of Civil Procedure section 430.41, subdivision (a). Accordingly, Defendant is ordered to meet and confer with Plaintiff in person or by telephone and thereafter file and serve a declaration attesting to such efforts at least 16 court days before the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Defendant City of Los Angeles’ Demurrer to Plaintiff’s Complaint is CONTINUED TO APRIL 27, 2020 AT 10:30 A.M. in Department 25. At least 16 court days before the next scheduled hearing, Defendant must file and serve a declaration demonstrating compliance with the meet and confer requirement. Failure to comply with the Court’s order may result in the Demurrer being placed off calendar or denied.

Moving party is ordered to give notice.