Case Number: 21STCV13962    Hearing Date: April 4, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Plaintiff Frederick Pina.

OPPOSITION:                      Defendant State Farm Mutual Automobile Insurance Company.

REPLY:                                 Plaintiff Frederick Pina.

Background

On April 13, 2021, Plaintiff Frederick Pina (“Pina”)—appearing in pro per—sued Defendant State Farm Mutual Automobile Insurance Company (“State Farm”) pursuant to six causes of action: (1) Intentional Interference with Prospective Economic Advantage, (2) Violation of Business and Professions Code section 17200, et seq., (3) Fraud, (4) Breach of Fiduciary Duty and Failure to Disclose, (5) Intentional Infliction of Emotional Distress, and (6) Civil Rights Violation.

On July 20, 2021, State Farm demurred to the Complaint’s six causes of action.

On November 4, 2021, the Court sustained the demurrer with leave to amend as to the breach of fiduciary duty claim but without leave to amend as to the remaining claims pleaded in the Complaint.

On December 1, 2021, Pina filed a First Amended Complaint (“FAC”) alleging three causes of action against State Farm: (1) Fraud; (2) Breach of Business Fiduciary Duty; (3) Negligent Infliction of Emotional Distress (NIED). The claims were premised on allegations Pina was unable to secure a greater settlement for injuries that Pina sustained as a result of a vehicle collision with State Farm-insured drivers in 2012 because the defense counsel hired by State Farm in that underlying action filed an evidentiary sanctions motion that was granted and restrained Pina’s ability to properly present evidence supporting his case, forcing Pina to settle for approximately $75,000 when his recovery should have been greater.

On December 30, 2021, State Farm filed a demurrer and motion to strike portions of the FAC based on litigation privilege, sufficiency of pleading, and uncertainty in pleading grounds.

Plaintiff Pina failed to oppose the demurrer and motion to strike.

On August 12, 2022—with Plaintiff Pina failing to appear at the hearing—the Court: (1) struck the Fraud and NIED claims because these were pleaded in the FAC in contravention of the Court’s November 4, 2021 order; (2) struck attorney’s fees allegations and prayers from the FAC; and (3) sustained the demurrer to the FAC’s breach of fiduciary duty claim without leave to amend. The Court also directed State Farm to submit a proposed judgment in conformity with the Court’s ruling.

On August 15, 2022, State Farm served on Pina a Notice of Ruling for the August 12th ruling.

On September 6, 2022, State Farm filed a proposed judgment.

On September 13, 2022, the Court entered judgment in this action in accordance with the August 12, 2022 ruling.

On March 7, 2023, Pina made a Motion to Set Aside/Vacate Judgment(s), Motion to Vacate Dismissal and Motion for Leave to Amend the FAC pursuant to Code of Civil Procedure section 473, subdivision (b) and section 663.

State Farm opposed the motion on March 21, 2023, and Pina replied thereto on March 22, 2023.

Preliminary Considerations

Self-Represented Litigant 

Plaintiff Frederick Pina is self-represented. Self-represented litigants are held to the same standards that apply to licensed attorneys. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; see Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-09 [Stating that self-represented litigants are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts”].)

Length of Motion’s Point and Authorities

The points and authorities for Plaintiff Pina’s motion to set aside are 54 pages long. (See Mot., pp. 8-61.) The limit for the length of points and authorities in motions not involving summary judgment or adjudication is 15 pages. (Cal. Rules of Court, rule 3.1113, subd. (d).) Instead of finding that the motion is a “late-filed paper” however (Cal. Rules of Court, rule 3.1113, subd. (g)), the Court limits its analysis of the motion to pages 8 to 22 therein.

Motion to Set Aside/Vacate Judgment or Dismissal: DENIED.

I. Code Civ. Proc., § 473, subd. (b)

Legal Standard

Section 473 subdivision (b) of the Code of Civil Procedure provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

The discretionary provision of section 473, subdivision (b), states in pertinent part that “[t]he 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” and that “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.” (Code Civ. Proc., § 473, subd. (b).)

The discretionary relief portion of section 473, subdivision (b) is not limited to defaults and default-equivalent conduct, and courts have not construed such a limitation, particularly where the only limiting language in this statutory provision comes with respect to the narrower mandatory relief provision of the statute. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-27.) For example, California courts have held that the discretionary relief provisions of section 473, subdivision (b) apply to a motion for relief from a summary judgment. (Id. at p. 31; see also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-19.)

Analysis

In relevant part, pro per Plaintiff Pina argues that his motion to set aside—directed either at the September 13, 2022 judgment or the August 12, 2022 ruling on demurrer to First Amended Complaint—was “filed within a reasonable period of time, not exceeding six months after entry of default.” (Mot., 11:14-18.)

In relevant part, State Farm argues in opposition that “plaintiff provides no explanation [for] why he waited more than six months to seek relief from the dismissal of his lawsuit when he was given notice of the dismissal soon after the court ruled on the demurrer and motion to strike” and where “the deadline for plaintiff to have filed his motion for relief from dismissal was [by State Farm’s calculation] February 10, 2023.” (Opp’n, 8:19-20, 12:13-15.)

Plaintiff Pina’s reply briefly states that the “motion is timely” but altogether fails to elaborate on the six-month window provided for in Code of Civil Procedure section 473, subdivision (b). (See Reply, 3:2-8:19.)

The Court finds that any motion brought by Plaintiff Pina pursuant to section 473, subdivision (b) is untimely. In bringing this motion, Plaintiff Pina in essence contests this Court’s August 12, 2022 ruling because judgment was ultimately entered against him on September 13, 2022 based on the August 12th ruling. Yet, this motion was brought on March 7, 2023, more than six months after August 12, 2022.

Further, even if the Court did reach the merits of the motion—as argued on pages 8 to 22 therein—the Court would still reach the conclusion that the points and authorities fail to explain what mistake, inadvertence, surprise, or excusable neglect occurred that led Plaintiff Pina to fail to oppose the demurrer to the FAC. Surprise and excusable neglect are mentioned on pages 11, 14, and 22 of the motion as general statements of state and federal law related to a motion to set aside. (Mot., 11:13-17, 14:20-22, 22:3-9.) Inadvertence is mentioned on pages nine, 11, and 14 of the motion, with the former reference related to a lack of respect for this Court and the latter two references summarizing state and federal standards for setting aside a default or dismissal. (Mot., 9:11-14, 11:13-17, 14:20-22; see 22:6 [“inadequate” could be typographical error meant to read as “inadvertence”].) Mistake is mentioned on pages nine, 14, 17-18, and 22 of the motion, but outside of recitations of state and federal law, mistake is raised only to apparently argue that the Court should have not ruled on State Farm’s demurrer to the FAC where, on December 7, 2021, Plaintiff Pina filed an errata notice for his FAC, attaching four exhibits not previously included in the December 1, 2021 filing of the FAC, amounting to a filing that “superseded” the December 1, 2021 filing. (Mot., 11:13-17, 14:13-22, 17:23-18:11, 22:3-9, 22:12-23.)

At most, the motion appears to argue that Plaintiff failed to attend the August 12th hearing based on work and scheduling conflicts, as well as litigation in federal court, constituting “excusabl[e] negligent” conduct on Pina’s part. (Mot., 8:12-21.) However, the Court’s August 12, 2022 ruling did not flow from Pina’s nonappearance at the hearing but rather because his FAC was fatally defective insofar as (1) Pina’s Fraud and NIED claims were inappropriately included in the FAC after a prior demurrer directed at the Complaint was sustained without leave to amend as to these claims (NIED was pleaded as IIED in the original Complaint) and (2) the breach of fiduciary duty claim advanced by Pina failed where California case law holds that the insurer-insured relationship is not a true “fiduciary relationship” in the same sense as the

relationship between trustee and beneficiary, or attorney and client, citing to Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1150-51 for this proposition. (See 8/12/22 Minutes, pp. 5-6 [fraud and NIED], 8 [fiduciary duty].)

To the extent that the motion argues judgment was entered against Pina as a result of fraud—which can serve as a basis to set aside the judgment—such arguments are premised on federal civil procedure or precedent (Mot., 14:23-25, 16:15-17), on California precedent not tied to the facts of this case (Mot., 16:20-22), or on arguments related to fraud that read unintelligibly (Mot., 18:19-21:21).

The Motion to Set Aside, as premised on Code of Civil Procedure section 473, subdivision (b), is therefore DENIED.

II. Code Civ. Proc., § 663

Legal Standard

A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: (1) incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; or (2) a judgment or decree not consistent with or not supported by the special verdict.

Analysis

No arguments related to section 663 appear in Plaintiff Pina’s motion until page 22 thereof, and such arguments are not sufficiently elaborated by Pina to advance any grounds for a “grant of new trial.” (See Mot., 22:7-9.) Other references to section 663 appear on pages 32 to 36 of the motion, which the Court does not consider pursuant to its California Rules of Court, rule 3.1113 determination in the Preliminary Considerations discussion ante.

Further, the Court notes that a motion to vacate the judgment under section 663 is not an appropriate procedure for challenging a judgment of dismissal entered after a demurrer has been sustained without leave to amend, because neither of the two grounds for vacating a judgment under section 663 applies to a demurrer, where the first ground does not apply because a demurrer tests only the sufficiency of the pleadings, such that there are no conclusions of law to be corrected from uncontroverted evidence, and the party making the motion is not asking for entry of a different judgment, but rather, is asking the judge to vacate the prior ruling on the demurrer in order to allow the party to file further pleadings, and where the second ground clearly does not apply because there is no special verdict involved in a demurrer ruling. (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1574-75, disapproved on other grounds by Ryan v Rosenfeld (2017) 3 Cal.5th 124, 134-35 fn. 3.)

Even if it were an appropriate procedure for challenging this judgment, Plaintiff has not shown that there is any incorrect or erroneous legal basis for the decision, as noted above.

The Motion to Set Aside, as premised on Code of Civil Procedure section 663, is therefore DENIED.

Motion for Leave to Amend: DENIED.

The Court need not address the leave to amend portion of plaintiff’s motion as it is advanced on pages 37 to 62 of Pina’s points and authorities, which the Court does not consider pursuant to its California Rules of Court, rule 3.1113 determination in the Preliminary Considerations discussion above.  However, even if the Court did consider it, the request for leave to amend is misplaced until and unless the judgment is set aside, which the Court declines to do.

Conclusion

Plaintiff Frederick Pina’s Motion to Set Aside and/or Vacate Judgment, Motion to Vacate Dismissal is DENIED.

Plaintiff Frederick Pina’s Motion for Leave to Amend is DENIED.