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Ross v. Kipperman

United States District Court, S.D. California

July 28, 2015

In re LEILANI ROSS, Plaintiff,
v.
RICHARD M. KIPPERMAN, in his capacity as liquidating trustee of the Liquidating Trust of San Diego Hospice & Pallative Care, Defendant.

ORDER GRANTING DEFENDANT KIPPERMAN'S MOTION TO SET ASIDE ENTRY OF DEFAULT [Doc. No. 27]; DENYING PLAINTIFF'S MOTIONS FOR DEFAULT JUDGMENT AS MOOT [DOC. Nos. 28, 30]

JOHN A. HOUSTON, District Judge.

Pending before the Court is defendant Kipperman's motion to set aside entry of default and plaintiff Ross' motion and amended motion for default judgment. After a thorough review of the parties' submissions and for the reasons set forth below, the Court GRANTS defendant Kipperman's motion to set aside entry of default and DENIES plaintiff Ross' motion and amended motion for default judgment as MOOT.

BACKGROUND

On May 16, 2014, plaintiff Leilani Ross ("Ross") filed a complaint in the Superior Court of California, County of San Diego, against defendants San Diego Hospice & Palliative Care Corporation ("SDHP"), San Diego Hospice Foundation ("the Foundation"), and Richard M. Kipperman, as liquidating trustee of the Liquidating Trust of San Diego Hospice & Palliative Care ("Kipperman"). In September 2014, Ross filed a first amended complaint ("FAC") to add an additional cause of action. The FAC contains eight causes of action: (1) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e); (2) violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (3) discrimination on the basis of race, ancestry, national origin in violation of Fair Employment and Housing Act ("FEHA"); (4) harassment on the basis of race, ancestry, national origin in violation of FEHA; (5) retaliation for complaining of discrimination; (6) failure to prevent discrimination and harassment in violation of FEHA; (7) wrongful termination in violation of public policy; and (8) violation of California Business and Profession Code § 17200. (Doc. Nos. 1-4.)

On September 19, 2014, SDHP removed the action to this Court. (Doc. No. 1.) On November 5, 2014, Kipperman was served with the summons and the FAC. (Doc. Nos. 9, 16.) On March 25, 2015, Ross filed a request for Clerk's entry of default, and the Clerk of Court entered default on March 26, 2015. (Doc. Nos. 25, 26.)

Kipperman filed the pending motion to set aside entry of default on April 20, 2015. (Doc. No. 27.) Ross filed an opposition on May 18, 2015 and Kipperman filed a reply on May 22, 2015. (Doc. Nos. 33, 34.) Ross filed a motion for default judgment on April 20, 2015, and filed an amended motion for default judgment on April 22, 2015 solely to give notice of a hearing. (Doc. Nos. 28, 30.) Kipperman filed an opposition on May 18, 2015 and Ross filed a reply on May 22, 2015. (Doc. Nos. 32, 35.) The hearing for the motions was originally set for June 1, 2015, but continued on the Court's own motion to June 15, 2015. (Doc. No. 36.) On June 15, 2015, the Court took the motions under submission without oral argument. (Doc. No. 37.)

DISCUSSION

I. Preliminary Issues

A. Plaintiff's Request for Judicial Notice

In support of Ross' opposition to Kipperman's motion to set aside default, Ross requests the Court take judicial notice of eight documents: 1) Kipperman's website, found at http://www.corpmgt.com/about.html; 2) Kipperman's resume; 3) a printout from PACER reflecting sixty-nine Federal civil cases Kipperman has served as a party; 4) a printout from PACER reflecting over 45, 000 cases defendant Kipperman's has served as a party in various bankruptcy cases and bankruptcy adversary proceedings; 5) a chapter 11 post confirmation quarterly report for quarter ending March 31, 2014; 6) plaintiff Leilani Ross' declaration in support of the motion for default judgment; 7) Gail J. Higgins' declaration in support of the motion for default judgment; and 8) "a motion for authority to enter into settlement agreement with San Diego Hospice Foundation, Inc. and approval of related settlement agreement between San Diego Hospice Foundation, Inc. and Wells Fargo Bank, N.A.; memorandum of points and authorities and declaration of Kipperman in support thereof." (Doc. No. 33-4 at 1-3.)

Kipperman filed objections to Ross' request for judicial notice. (Doc. No. 34-1 at 3-6.) Specifically, Kipperman asserts that the documents are introduced for their truth and not properly subject to judicial notice. (Id.) Additionally, with respect to documents 1-5 and 8 above, Kipperman asserts that the documents are irrelevant to determining whether good cause exists to set aside the entry of default. (Id.)

Rule 201 of the Federal Rules of Evidence provides that a "court may judicially notice a fact that is not subject to reasonable dispute because it... (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

With respect to documents 3 and 4, the Court GRANTS Ross' request for judicial notice pursuant to Rule 201 of the Federal Rules of Evidence on the grounds that the documents are publically available records not subject to reasonable dispute. The Court does not rely on documents ...


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