Metropolitan News-Enterprise


Thursday, February 11, 2016


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Motion to Set Aside Default Need Not Be Sworn to—C.A.


By a MetNews Staff Writer


A motion for relief from default or dismissal under Code of Civil Procedure §473(b) does not require a declaration under penalty of perjury, the Court of Appeal for this district has ruled.

Div. Seven Tuesday certified for publication a Jan. 24 opinion in which it reversed Los Angeles Superior Court Judge Yvette Palazuelos’s order denying Nina Austin’s motion to set aside the dismissal of her suit charging the Los Angeles Unified School District with age, race, and sex discrimination. The case was sent back to the trial court so that the motion may be considered on its merits.

Austin sued the district in 2012, alleging violation of the whistleblower statute and termination in violation of public policy, as well as violations of the Fair Employment and Housing Act. She also named Danford Schar, principal at Ernest Lawrence Middle School in Chatsworth; James Ramirez, the dean of students; and Junior Sandoval, a safety officer, as defendants.

Austin claimed the three had targeted her for harassment over a period of five years, and that she was fired because she had complained about Ramirez after he used a student in a sting operation designed to get Austin fired. The student was allegedly told to wander the halls without apparent permission, with the intent of finding that Austin, a campus aide charged with enforcing discipline, would be derelict in her duty and not take action against the student.

The plaintiff said this violated policy because the student was brought into an investigation without authorization from the principal or his parents.

The district claimed that Austin was fired for good cause, including threats of violence against Sandoval. Austin replied that she never threatened to attack Sandoval, who was in his 20s and weighed over 200 pounds, while Austin weighed barely over 100 pounds and was in her mid-60s.

 Austin’s original counsel withdrew due to disagreement over the handling of the case, which Austin later said was a result of her rejection of a settlement offer. Austin represented herself in opposition to the defendants’ summary judgment motion, which the judge granted.

Sixteen days after the judge ruled, Austin moved for reconsideration. She subsequently obtained new counsel, who filed a new motion “for reconsideration of judgment” several months later.

The district argued that the motion for reconsideration was untimely, because it was not file within 10 days, and that even if the second motion was construed as a §473(b) motion, although not designated as such, it was untimely because it was not filed within six months.

Palazuelos ruled that the second motion was untimely, and held that the first motion, while it could be construed as a timely §473(b) motion, failed because it was not sworn to under penalty of perjury.

But Presiding Justice Dennis Perluss, writing for the Court of Appeal, said the judge had discretion to treat the first motion as having been made under §473(b), and that it was therefore timely. He also concluded that the motion was not one that had to be sworn to under penalty of perjury.

He explained that “before 1981 a party seeking relief under what is now section 473(b) had to submit either an affidavit of merits or a verified pleading,” but the requirement was expressly deleted that year, so the judge’s ruling was “plain error.”

Perluss went on to reject the district’s claim that any error was harmless in light of what it said was a lack of competent evidence to support Austin’s claims. Austin, the presiding justice noted, submitted a declaration describing her confrontation with Sandoval, her job performance, and her reports to Schar of harassment by the other defendants.  

She also made “at least a prima facie case” that the motion for summary judgment would not have been granted but for the neglect or mistake of her original counsel in not deposing key witnesses, Perluss said.

Attorneys on appeal were Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow’s David H. Chao and Thomas R. Freeman for the plaintiff and David V. Greco, LAUSD assistant general counsel, for the defendants.

The case is Austin v. Los Angeles Unified School District, 16 S.O.S. 791.


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