Clay v. AT&T West, Inc. CA3

Filed 4/11/13 Clay v. AT&T West, Inc. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

JEROME A. CLAY, JR., C069489

Plaintiff and Appellant, (Super. Ct. No. 39-2010- 00243385-CU-WT-STK) v.

AT&T WEST, INC.,

Defendant and Respondent.

Plaintiff Jerome A. Clay, Jr., sued defendant AT&T West, Inc., alleging wrongful termination and infliction of emotional distress.1 AT&T West defaulted on the complaint; however, the trial court granted AT&T West‟s motion to set aside the default. Later, the court sustained AT&T West‟s demurrer to Clay‟s complaint and dismissed the action. Representing himself, Clay appeals, contending in his headings that the trial court improperly sustained the demurrer but arguing in the text only that the court abused its discretion in setting aside AT&T West‟s default.

1 Defendant asserted in the trial court, through counsel, that its true name is Pacific Bell Telephone Company. However, following the caption in the case, we refer to defendant as AT&T West.

1

We conclude that (1) the granting of the motion to set aside the default is reviewable on appeal after the dismissal, (2) Clay‟s opening brief is deficient because it fails to rely solely on matters in the record on appeal, (3) Clay has forfeited any argument about whether the trial court properly sustained AT&T West‟s demurrer, and (4) the record does not support Clay‟s argument that the trial court abused its discretion in granting AT&T West‟s motion to set aside the default. We therefore affirm. BACKGROUND Soon after filing his original complaint, Clay filed an ex parte application for a temporary restraining order to prevent AT&T West from transferring Clay from his employment in Stockton to another job location, apparently in Fresno. He claimed that a transfer would inhibit his ability to retain custody of his daughter and result in not being able to make mortgage payments on his house in Stockton. AT&T West, represented by attorney Glen Turner, opposed the application, and the trial court denied it. AT&T West failed to file a timely answer to the complaint, so Clay requested entry of default, which the court clerk entered. The court held a hearing on the default judgment but denied the request for default judgment because the statement of damages had not been served on AT&T West. AT&T West filed an ex parte application for relief from default. In support of the application, attorney Turner filed a declaration stating that he was retained to represent AT&T West. When the trial court denied the application for a temporary restraining order, Clay said to attorney Turner, “I just got the decision. Looks like I‟m done here.” Based on that statement and his belief that the complaint had not been served, Turner believed Clay was not pursuing the action further. Within days of learning that AT&T West‟s default had been entered, Turner filed the ex parte application for relief from default. The trial court granted AT&T West‟s motion and set aside the default.