Case Number: BC575988 Hearing Date: September 01, 2016 Dept: 61
Plaintiff James R. Austin’s Application to Vacate Order Sustaining Demurrer is DENIED. Defendant McKesson to submit a proposed judgment to the court within ten days.
Austin filed this motion pursuant to Code Civ. Proc. section 473 subdivision (d) and 475.
Section 473 subdivision (d) provides: “The court may, upon motion of the injured party, or its own motion, 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.”
Austin does not raise any cleric mistakes in the judgment. Austin does, however, raise four issues he claims cause prejudice to him that warrant this court to vacate its order sustaining the demurrer to the complaint.
First, Austin claims that this court abused its discretion by failing to enter defendant’s default upon his application filed on January 6, 2016. (Motion to Vacate at p. 1.) However, on January 15, 2016, this court held a case management conference where the court found that Austin filed the proof of service on defendant on November 9, 2015. The court then set an OSC re: Entry of Default and/or Answer for April 14, 2016. McKesson then filed its responsive pleading on March 15, 2016, before the OSC re: Entry of Default on April 14, 2016. No default should have been entered against McKesson.
Austin then claims that this court denied him due process by advancing a case management conference and OSC re: Default from April 14 to April 13. (Motion to Vacate at p. 2.) However, the court only advanced the OSC from April 14 to April 13 because it sustained McKesson’s demurrer to the Complaint in its entirety on April 13, the hearing date of the demurrer. McKesson’s demurrer was scheduled for April 13, 2016, and properly served on Austin.
Austin then argues that he was denied due process because this court deliberately failed to calendar and hear his motion to strike McKesson’s demurrer. (Motion to Vacate at p. 2.) The court notes that Austin did file an Opposition to the demurrer, which this court considered in making its ruling. The court also reviewed the “Notice of Motion to Strike Defendant’s Demurrer as Untimely” in making its ruling on the demurrer. The court did not calendar this motion not because no fee was paid, but because no hearing date was reserved. All of Austin’s arguments were considered, whether raised in his Opposition or in his “Motion to Strike” the demurrer.
Austin then argues that this court did not take judicial notice of his pending Federal habeas corpus petition pursuant to his March 27, 2016 request. The court does not have a copy of this request for judicial notice. However, the court notes that Austin is requesting a stay of this proceeding pursuant to Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194. In Coscia, the court held that although a legal malpractice action by a criminal defendant “is subject to demurrer or summary judgment while a plaintiff’s conviction remains intact, the court should stay the malpractice action during the period in which such a plaintiff timely and diligently pursues postconviction remedies.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1210–11.)
No request was made for a stay of these proceedings by Austin in his opposition to the demurrer. The demurrer has already been sustained as to the causes of action, and the court cannot now stay the proceedings. The court also notes that Austin has provided this court with no documents showing that his post-conviction relief is still ongoing.
Austin also argues again that the demurrer was untimely because McKesson was served with the complaint on November 15, 2015, and the demurrer was filed more than 60 days later on March 15, 2016. However, this court allowed McKesson to file an Answer before the OSC re: Entry of Default on April 14, 2016. McKesson filed a demurrer, another form of a responsive pleading, instead of an Answer, before this date. The Demurrer was timely filed pursuant to this court’s own order.
The Motion to Vacate the Order Sustaining the Demurrer is DENIED.
Defendant to provide notice.