People v. Thompson CA2/6

Filed 3/24/15 P. v. Thompson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Civil No. B257614 (Super. Ct. No. 56-2013-443717- Plaintiff and Respondent, CU-MC-VTA) (Ventura County) v.

NOEL THOMPSON,

Defendant and Appellant.

Defendant Noel Thompson appeals a default judgment entered against him for $6 million after the court denied his motion to vacate a default. He did not file an answer to the People's complaint in its civil action for injunctive relief and civil penalties. (Bus. & Prof. Code, § 17200 et seq.) We conclude, among other things, that Thompson has not shown he was entitled to relief from default due to his counsel's surprise, inadvertence, mistake or neglect. (Code Civ. Proc., § 473, subd. (b).)1 We affirm. FACTS The District Attorney filed a complaint for permanent injunction and civil penalties for unfair business practices (Bus. & Prof. Code, § 17200 et seq.) against Thompson. The People alleged Thompson was "an owner, managing officer and director" of defendants Body Shaping Gyms, Inc. (BSG) and Body Shaping Investments,

1 All statutory references are to the Code of Civil Procedure unless otherwise stated.

LLC (BSI), which entered into "health studio services contract[s]" that were misleading to consumers. BSG was alleged to be conducting business under the name "Gold's Gym." The trial court issued a temporary restraining order and a subsequent preliminary injunction prohibiting the defendants from selling any "health studio services contract that does not comply with Civil Code sections 1812.80 et. seq." and other provisions of state law protecting consumers. On December 20, 2013, Ron Bamieh, the attorney for Thompson and the other defendants, informed the trial court that BSG "has filed bankruptcy." The trial court found this unfair business practice action fell within the police power exception to the bankruptcy stay order. It said, "[T]he automatic stay does not prevent this court from proceeding with the litigation of this action." Thompson filed a demurrer and motion to strike in response to the complaint. The trial court denied the motion to strike and overruled the demurrer. It ordered Thompson to file an answer by February 6, 2014. On February 4, Bamieh's firm sent an email to the District Attorney's office requesting a 15-day extension of time to answer the complaint. In response, Deputy District Attorney Karen Wold said that defendants had received an earlier extension of time, but they "filed a frivolous demurrer and motion to strike[.]" She also said, "If you are seeking another extension beyond that which we previously granted, you will need to seek approval from the Court." On February 6, 2014, Bamieh filed an application for an order extending time to serve an answer to the complaint. He claimed he needed additional time to answer because "our firm must make a formal application with the Bankruptcy Court to be appointed BSG's special litigation counsel under 11 USC § 327(e) in order to represent and be compensated for representation in the current action." Bamieh set a hearing date for the motion for an extension for March 14, 2014. On February 10, 2014, Wold sent an email to Bamieh's firm stating, "As a professional courtesy, we wanted to advise you that we are going to be filing a request to