Filed 10/16/13 Baah v. AT&T CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ALEX BAAH,

     Plaintiff and Appellant,                                          G047803

         v.                                                            (Super. Ct. No. 30-2009-00312935)

AT&T CORP. et al.,                                                     OPINION

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County,
Sally Ann Salisbury, Temporary Judge (pursuant to Cal. Const., art. VI, § 21), and
James Di Cesare, Judge. Affirmed.
                   Alex Baah, in pro. per., for Plaintiff and Appellant.
                   Jennifer Z. Morris for Defendant and Respondent.
              Alex Baah filed a wrongful termination action against his employer
AT&T Corp., Pacific Bell Telephone Company, a corporation doing business as
AT&T California (Pacific Bell), and SBC Communications. The trial court sustained
Pacific Bell’s demurrer to Baah’s verified third amended complaint without leave to
amend. We affirmed the trial court’s ruling in Baah v. Pacific Bell Telephone Company
(Feb. 1, 2012, G045473) [nonpub. opn.].
              Just prior to this court filing its opinion in Baah v. Pacific Bell
Telephone Company, supra, G045473, Baah obtained default judgments against the
remaining named defendants, AT&T Corp., and SBC Communications. On the day we
filed our opinion, AT&T Services Legal Department on behalf of Pacific Bell, AT&T
Corp., and SBC Telecom, Inc.,1 filed a motion to set aside entry of the default judgments.
After the trial court granted the motion to set aside the default judgments, AT&T Corp.
filed a motion to correct the judgment for clerical error. A temporary judge granted the
motion to correct the judgment for clerical error. After the temporary judge granted that
motion, the trial court denied Baah’s motion for reconsideration.
              Baah appeals from a judgment entered after the trial court denied his
motion to reconsider the temporary judge’s order granting AT&T Corp.’s motion to
correct the judgment for clerical error. Baah raises three claims: (1) the trial court erred
in vacating the default judgment against AT&T Corp., and SBC Communications; (2) the
temporary judge erred in granting the motion to correct the judgment for clerical error;
and (3) the trial court erred in denying his motion for reconsideration. None of his
contentions have merit, and we affirm the judgment.




1              Hereafter, we will refer to Pacific Bell, AT&T Corp., and SBC Telecom
Inc., collectively and in the singular as AT&T Corp., unless the context indicates
otherwise.


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                                         FACTS
              Baah filed a verified complaint against “AT&T” for retaliation,
misrepresentation, fraud, and wrongful termination in violation of public policy. Baah
filed a verified first amended complaint against “AT&T, AT&T California, [and]
SBC Communication” alleging the same causes of action.2 AT&T Corp. filed a demurrer
for “Pacific Bell Telephone Company erroneously sued as AT&T, AT&T California,
[and] SBC Communications.” AT&T Corp. filed requests for judicial notice. One of the
requests included the following exhibits: (1) a fictitious business name statement
indicating “‘AT&T California’” is Pacific Bell’s fictitious business name; (2) service of
process for AT&T California; (3) a fictitious business name statement indicating “SBC
California” is Pacific Bell’s fictitious business name; and (4) Baah’s W-2 forms from
Pacific Bell. On October 28, 2010, the trial court sustained the demurrer with leave to
amend. As relevant here, the court stated, “Moving party Pacific Bell has established that
AT&T is its fictitious business name and that [Baah] was [Pacific Bell’s] employee.”
The court granted the request for judicial notice but not as to the truth AT&T California
was served.
              Baah filed a verified second amended complaint against “AT&T Corp[.],
Pacific Bell Telephone Company, a corporation, doing business as AT&T California,
[and] SBC Communications, [d]efendants[]” alleging the same causes of action.
AT&T Corp. filed a demurrer for “Pacific Bell Telephone Company
(dba AT&T California and former dba SBC California), erroneously sued as
SBC Communications.” The trial court sustained the demurrer with leave to amend.
              On February 4, 2011, Baah filed verified third amended complaint against
the same defendants alleging the same causes of action. AT&T Corp. filed a demurrer
for “Pacific Bell Telephone Company (dba AT&T California and former dba

2             Throughout our opinion, we have omitted the original capitalization in the
pleadings.

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SBC California), erroneously sued as SBC Communications.” Baah replied. The trial
court sustained the demurrer without leave to amend.
              Baah filed a motion for reconsideration and a renewed motion for
reconsideration, both of which Pacific Bell opposed. The trial court denied both
reconsideration motions.
              On May 3, 2011, the trial court entered judgment for Pacific Bell. The
judgment was modified to read: “AT&T Corp., Pacific Bell Telephone Company, a
corporation doing business as AT&T California, SBC Communications[.]” Pacific Bell
filed notice of entry of judgment. Baah appealed in July 2011.
              Upon Baah’s request, entry of default judgment on the original complaint
filed October 20, 2009, was entered against AT&T Corp. on November 4, 2011, and
against SBC Communications on January 6, 2012. On February 1, 2012, AT&T Corp.
filed a motion to set aside entry of default, quash service of summons, and dismiss the
complaint served on AT&T Corp., and SBC Communications, which were specially
appearing. Relying on Code of Civil Procedure section 473, subdivision (b), AT&T
Corp. argued the trial court should set aside the default judgment because of the
following: (1) Baah did not properly serve defendants with a summons; (2) defendants
were not liable because the trial court and this court concluded Pacific Bell was not
liable; and (3) there is no known entity SBC Communications and SBC’s fictitious
business name was never SBC Telecom, Inc. Attorney for Pacific Bell, Jennifer Z.
Morris, included a declaration in support of the motion.
              In our prior nonpublished opinion Baah v. Pacific Bell Telephone
Company, supra, G045473, we affirmed the trial court’s ruling sustaining a demurrer




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without leave to amend Baah’s verified third amended complaint and denying his
motions for reconsideration.3
               After we filed our opinion, Baah filed an opposition to Pacific Bell’s
motion to set aside entry of default refuting each of Pacific Bell’s claims. Baah added
that Pacific Bell had not complied with Code of Civil Procedure section 473’s procedural
requirements because it had not included a pleading to be filed in the event the trial court
granted the motion. Pacific Bell replied. The matter was continued twice and heard in
August 2012.
               In a minute order dated August 2, 2012, the trial court,
Judge James Di Cesare, granted the motion to set aside the default judgments against
AT&T Corp., and SBC Communications but denied the motions to quash and dismiss.
The court explained: “Defendants were properly served when their agent for service of
process accepted service on summons on the [f]irst [a]mended [c]omplaint. There was no
confusion on [d]efendants’ part about who was being sued, which was Pacific Bell, as
evidenced by acceptance of service of process and responsive pleadings indicating
service was on erroneously-named [d]efendants. [Citation.] [¶] Judgment was entered
in this case in favor of Pacific Bell on May 3, 2011. Based upon matters which the
[c]ourt took judicial notice, it concluded that although it had fictitious names under which
it did business, Pacific Bell was [Baah’s] employer. The pleadings established all
employment actions taken in connection with [Baah’s] discharge from employment were
taken by Pacific Bell, even though that was not always the name used. The [j]udgment in
favor of Pacific Bell is as to all [d]efendants named in the [t]hird [a]mended [c]omplaint.
However, the [j]udgment submitted by Pacific Bell and signed by the [c]ourt did not

3             On our own motion, we take judicial notice of our prior nonpublished
appellate opinion and record in that matter. (Evid. Code, §§ 452, subd. (d) [judicial
notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v.
Shemtov (2010) 180 Cal.App.4th 1160, 1171, 1173 [court may take judicial notice of
prior nonpublished opinions in related appeals on its own motion].)

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make this clear, failing to refer to each named [d]efendant. [¶] Because [j]udgment was
entered in favor of Pacific Bell, all ‘doing business as names’ are included in the
[j]udgment. Therefore, the [c]ourt concludes that it did not have jurisdiction to enter
these [d]efendants’ defaults since it lost jurisdiction upon entry of judgment. [¶] Since
the court hasn’t had jurisdiction for some time, it does not have it now as any motion
other than the one to set aside the default.” In a minute order the next day, the trial court
ordered nunc pro tunc defendants’ responsive pleading due within 20 days. AT&T Corp.
provided notice of the trial court’s rulings.
              Two weeks later, AT&T Corp. filed an ex parte application for entry of
judgment in favor of AT&T Corp., and SBC Telecom. The trial court denied the ex parte
application stating counsel was to file a motion for entry of judgment and give notice.
              AT&T Corp. filed a motion to correct judgment for clerical error on behalf
of Pacific Bell, AT&T Corp., and SBC Telecom. In its motion, AT&T Corp. argued the
trial court’s May 3, 2011, judgment is as to all the defendants named in the verified third
amended complaint but the proposed judgment submitted by Pacific Bell failed to “make
this clear.” Additionally, AT&T Corp. contended the trial court and this court have
already determined Pacific Bell, as Baah’s employer, is not liable. Morris included a
declaration in support of the motion and exhibits supporting the motion, including the
October 28, 2010, minute order where the trial court took judicial notice of Pacific Bell’s
fictitious business names. AT&T Corp. also filed a demurrer to Baah’s verified third
amended complaint on behalf of AT&T Corp., and SBC Telecom.
              Baah opposed the motion to correct judgment for clerical error.
AT&T Corp. filed a reply motion to correct judgment for clerical error on behalf of
Pacific Bell, AT&T Corp., and SBC Telecom.
              At a hearing in September 2012, the parties stipulated to a temporary judge
hearing the matter. The temporary judge heard the matter and took it under submission.
In a minute order, the temporary judge explained she had reviewed the evidence and the

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superior court file, and considered written and oral arguments. The temporary judge
granted the motion to correct judgment for clerical error pursuant to
Code of Civil Procedure section 473, subdivision (d).
                The following month, the trial court, Judge James Di Cesare, ruled
AT&T Corp., and SBC Telecom’s demurrer was moot because the temporary judge
granted the motion to correct judgment for clerical error.
                After we denied Baah’s petition for writ of mandate requesting this court
order the trial court to vacate its order granting the motion to correct judgment for clerical
error, Baah filed a motion for reconsideration. AT&T Corp. opposed the motion, and
Baah replied.
                In a minute order, the trial court stated it had read and considered the oral
and written arguments of the parties. Relying on Code of Civil Procedure section 1008,
subdivision (a), the court denied the motion, reasoning Baah’s motion for reconsideration
does not include any new or different facts, circumstances, or law. AT&T Corp. filed
notice of entry of judgment. Baah again appealed.
                                        DISCUSSION
I. Motion for Relief from Default
                Baah contends the trial court erred in granting AT&T Corp.’s motions to
vacate the default judgments against AT&T Corp., and SBC Communications. We
disagree.4

4              Before we address Baah’s claim the temporary judge erred in granting
AT&T Corp.’s motion to correct the judgment because of a clerical error, we must
determine whether the trial court properly granted AT&T Corp.’s motion to set aside the
default judgments against AT&T Corp., and SBC Communications. Needless to say, the
temporary judge could not correct the clerical error in the judgment to include
AT&T Corp., and SBC Communications if there were default judgments entered against
those defendants. Unfortunately, AT&T Corp. does not address this claim at all. AT&T
Corp. spends the majority of its time discussing why Baah’s release of claims against
Pacific Bell includes AT&T Corp., and SBC Communications, and why Baah’s third
amended complaint fails to state facts sufficient to constitute causes of action.

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              Code of Civil Procedure section 473, subdivision (b), provides: “The court
may, upon any terms as may be just, relieve a party or his or her legal representative from
a judgment, dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall
be accompanied by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted, and shall be made within a reasonable
time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding
was taken.” We review the vacating of a default judgment for an abuse of discretion.
(Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court. [Citations.]” (Id. at pp. 478-479.)
              Here, the trial court did not abuse its discretion in granting AT&T Corp.’s
motions to set aside entry of default against AT&T Corp., and SBC Communications.
Preliminarily, although AT&T Corp. does not raise the issue, the default judgments were
entered on the incorrect complaint. The default judgments were entered on the original
complaint filed on October 20, 2009, but the trial court sustained a demurrer with leave to
amend as to this complaint, and thus the original complaint did not exist. (5 Witkin, Cal.
Procedure (5th ed. 2008) Pleading, § 988, p. 400 [sustaining of demurrer destroys
complaint as pleading and proper course is to file completely new amended complaint]),
              As to the merits, sufficient evidence supports the trial court’s judgment that
Baah was effectively suing one entity. At the hearing on October 28, 2010, the trial court
had before it evidence establishing Pacific Bell was Baah’s employer and the other
entities Baah was attempting to sue were either current or former fictitious business
names of Pacific Bell. The court could reasonably rely on this evidence in concluding
counsel for AT&T Corp. inadvertently failed to specify the named defendants in the
verified third amended complaint in the proposed judgment. Therefore, sufficient

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evidence supports the court’s ruling that when it entered judgment in favor of Pacific Bell
it was entering judgment as to all defendants named in the verified third amended
complaint because they were all the same entity.
              Baah complains AT&T Corp. did not include a copy of the proposed
pleading with its motion to set aside entry of default as required by Code of Civil
Procedure section 473, subdivision (b). Failure to include the pleading is not
jurisdictional, and substantial compliance with the rule may suffice. (Carmel, Ltd. v.
Tavoussi (2009) 175 Cal.App.4th 393, 402-403; Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2013) ¶ 5.305.10, p. 5-82.) AT&T Corp.
substantially complied with the requirement when it filed its demurrer within 20 days as
directed by the trial court. Thus, the trial court properly granted AT&T Corp.’s motion to
set aside the default judgments against AT&T Corp., and SBC Communications.
II. Motion to Correct Judgment for Clerical Error
              Baah argues the trial court erred in granting AT&T Corp.’s motion to
correct the judgment because of a clerical error. Again, we disagree.
              Code of Civil Procedure section 473, subdivision (d), states: “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.” We review the trial court’s ruling for an abuse of discretion. (Davis v. Thayer
(1980) 113 Cal.App.3d 892, 904.) “Under the doctrine of implied findings, the reviewing
court must infer, following a bench trial, that the trial court impliedly made every factual
finding necessary to support its decision.” (Fladeboe v. American Isuzu Motors Inc.
(2007) 150 Cal.App.4th 42, 48.)
              Here, the temporary judge properly granted AT&T Corp.’s motion to
correct the judgment because of a clerical error without discussion. Based on the record
before us, we must infer the temporary judge made every factual finding necessary to

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support its decision after considering the parties’ moving papers and argument, and
reviewing the superior court file. (In re Marriage of Kaufman (1980) 101 Cal.App.3d
147, 151 [clerical error correctable at any time].) The superior court file includes
evidence, Baah’s W-2 forms, establishing Pacific Bell was Baah’s employer, and
Pacific Bell had operated under various fictitious business names over the years,
including AT&T California and SBC California based on California Secretary of State
records. Thus, the temporary judge’s implied finding the clerical error in the May 3,
2011, judgment must be corrected to include all the named defendants in the verified
third amended complaint is supported by sufficient evidence.
              Estate of Goldberg (1938) 10 Cal.2d 709, is instructive. In that case, the
testator in his will directed that certain property be divided among his four children
(naming them) but the decree of distribution omitted the name of one child as distributee.
A copy of the will had been attached to the petition for distribution that prayed the
residue of the estate “‘be distributed to those entitled thereto.’” (Id. at p. 710.) However,
the petition did not indicate the manner in which the estate should be distributed. The
minute order on distribution stated: “‘Decree of distribution granted in accordance with
terms of the will, and the [c]ourt directs that the proper decree be prepared and filed
herein, and when filed, the same to be entered in the records of this [c]ourt on the date of
filing.’” (Id. at p. 711.) Thirty-five years later, the court made a nunc pro tunc order
amending the decree to conform to the will by inserting the name of the omitted child.
(Ibid.) The court of appeal held this was a proper correction of a clerical error appearing
on the face of the record. (Id. at p. 716.)
              Like Goldberg, here, the record includes sufficient evidence from which the
temporary judge could reasonably conclude judgment should have been entered in favor
of Pacific Bell as to all defendants named in the third amended complaint. Although we
are not concerned with a nunc pro tunc order here, the Goldberg court’s reasoning a
judge may correct a clerical error in a judgment at any time is applicable here. (7 Witkin,

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Cal. Procedure (5th ed. 2008) Judgment, § 68, p. 604 [listing cases where courts have
corrected mistake in name of party and correcting omission of name of party].) Contrary
to Baah’s assertion otherwise, when the trial court sustained the demurrer to Baah’s
verified third amended complaint, it was doing so as to all the named defendants in that
complaint. The court did so based on the fact the general release and waiver of claims
agreement Baah signed states that in exchange for the benefits he was to receive, he
releases, “the Plan, AT&T Inc. and the Participating Company and their current and
former parents, subsidiaries, affiliates, successors or assigns . . . .” Thus, the temporary
judge properly granted AT&T Corp.’s motion to correct judgment for clerical error.
III. Motion for Reconsideration
              Baah claims the trial court erred in denying his motion for reconsideration.
Not so.
              Code of Civil Procedure section 1008 authorizes a party who is affected by
an order to file within 10 days after service of written notice of entry of the order an
application for reconsideration based upon new or different circumstances, facts, or law.
Where the moving party has failed to comply with Code of Civil Procedure section 1008
by not presenting new facts or new law, the denial of the motion to reconsider is not
appealable. (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459;
In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.)
              Here, Baah cites to his motion for reconsideration and his declaration in
support of his motion to support his claim he provided new circumstances, facts, and law.
But he does not specify what is new, and leaves it to us to discern what is new and
therefore, the point is waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974,
978-979.) Additionally, he does not explain his lack of diligence in presenting the new
circumstances, facts, or law earlier. We have reviewed the motion and the declaration
and conclude Baah presents no new circumstances, facts, or law supporting the
conclusion the trial court’s judgment exceeded the bounds of reason. The circumstances,

                                             11
facts, or law he characterizes as new were well within his knowledge as he litigated the
case and thus, they are not new. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690-691
[facts not new or different when always within possession and no satisfactory explanation
why not divulged earlier].) Therefore, the trial court did not abuse its discretion in
denying Baah’s motion for reconsideration.
                                      DISPOSITION
              The judgment is affirmed. Respondent is awarded its costs on appeal.




                                                  O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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