Judge: Anne Richardson, Case: BC719459, Date: 2023-04-12 Tentative Ruling

Case Number: BC719459    Hearing Date: April 12, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Plaintiff Jeanette France.

OPPOSITION:                      Defendant Los Angeles Department of Water and Power.

REPLY:                                 [None]

Background

On August 27, 2019, Plaintiff Jeanette France—then represented by counsel—sued Defendants Los Angeles Department of Water and Power (“LADWP”) and Does 1 through 100 pursuant to claims of (1) FEHA Discrimination based on Disability, (2) Failure to Provide Reasonable Accommodation, (3) Failure to Take All Reasonable Steps to Prevent Discrimination and Harassment, (4) Wrongful Termination in Violation of Public Policy and FEHA Retaliation (combined into one claim), and (5) Violation of Labor Code § 132a.

On October 22, 2019, Plaintiff filed a First Amended Complaint against LADWP and Does 1 through 100, updating the claims against Defendants to (1) FEHA Discrimination based on Disability, (2) Failure to Provide Reasonable Accommodation, (3) Failure to Take All Reasonable Steps to Prevent Discrimination and Harassment, and (4) FEHA Harassment.

On April 2, 2019, Plaintiff France moved for leave to file a Second Amended Complaint (“SAC”), which the Court granted on June 19, 2019.

While the record does not, upon cursory inspection, show a filing for the SAC, a copy thereof was attached to the motion for leave to file SAC as Exhibit 4. The SAC was again directed at Defendants LADWP and Does 1 through 100, with allegations of (1) FEHA Discrimination based on Disability, (2) Failure to Provide Reasonable Accommodation, (3) Failure to Take All Reasonable Steps to Prevent Discrimination, and (4) FEHA Retaliation for Engaging in Protected Conduct.

On September 19, 2019, LADWP filed a motion for summary judgment or adjudication against the SAC’s four causes of action, which Plaintiff France opposed on November 21, 2019.

On December 20, 2019, the Court heard and granted LADWP’s motion as to all causes of action pleaded in the SAC.

Judgment thereon was entered on December 27, 2019.

On November 29, 2022, Plaintiff France made an in pro per ‘Motion for Summary Judgment’ seeking to set aside and vacate the December 20, 2019 ruling (and the December 27, 2019 judgment) pursuant to Code of Civil Procedure section 473, subdivision (b).

On December 14, 2022, LADWP opposed the ‘summary judgment’ motion on the grounds that the motion to set aside was untimely and that the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) does not extend for summary judgment decisions.

On December 20, 2022, Plaintiff France filed a response to LADWP’s opposition arguing that the opposition should be denied because defense counsel misled the court into entering summary judgment against Plaintiff.

On December 22, 2022, the hearing on Plaintiff’s motion was continued from January 3, 2023 to January 26, 2023.

On January 19, 2023, the hearing on Plaintiff’s motion was continued from January 26, 2023 to May 31, 2023.

On February 7, 2023, LADWP filed what appears to be a renewed opposition to Plaintiff’s ‘summary judgment’ motion, therein noting that Plaintiff mistakenly believed that the hearing was moved to May 31, 2023 based on LADWP’s conduct.

On February 14, 2023, Plaintiff France filed an ‘answer’ to LADWP’s February 7th opposition arguing that the hearing on Plaintiff’s motion should not be continued to May 31, 2023 due to delay in litigation, California Court Rule 32, inadvertence, inexcusable delay, and harassment.

On February 27, 2023, the Court advanced the hearing on Plaintiff’s motion from May 31, 2023 to April 12, 2023.

Plaintiff’s motion is now before the Court.

Motion to Set Aside and Vacate Judgment: DENIED

Preliminary Consideration

While the motion before the Court is presented as a summary judgment motion, a review of the points and authorities shows that it seeks to set aside and vacate the December 20, 2019 summary judgment ruling, and thus, set aside and vacate the December 27, 2019 judgment entered against Plaintiff France, as made pursuant to Code of Civil Procedure section 473, subdivision (b). (See Mot., pp. 1-7.)

 The Court thus analyzes this motion as a motion to set aside and vacate judgment.

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 [attorney’s medical condition and medication for that condition, that, unbeknownst to him, impaired his judgment and made him unable to prepare proper opposition to the summary judgment motion, was excusable neglect under section 473, subdivision (b)]; see also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-19 [“Summary judgments … are not within the purview of the mandatory relief provision” of section 473, subdivision (b) because relief is limited to “defaults, default judgments, and dismissals,” but “[t]he discretionary relief provision of section 473, subdivision (b) applies to any ‘judgment, dismissal, order, or other proceeding’”].)

Analysis

The Court DENIES Plaintiff’s motion ‘for summary judgment’—in fact, a motion to set aside and vacate the December 2019 summary judgment ruling and resulting judgment against her—because the motion, even if brought pursuant to the discretionary portion of Code of Civil Procedure section 473, subdivision (b), is untimely where the motion was made more than 35 months (i.e., nearly three years) after the December 2019 ruling and entry of judgment against Plaintiff France. That is well over the six-month limit prescribed by section 473, subdivision (b). (See 11/29/22 Mot., p. 3 [“I would like to request the Summary Order dated December 20, 2019 @ 0830 … be VACATED, SET ASIDE and or REOPENED then DISMISSED due to: ‘Inadvert[e]nce, Surprise, Mistake, or Excusable Neglect (CCP & 473(b)[’]”]; 12/14/22 Opp’n, 2:9-12 [“Plaintiff’s application for relief is untimely, as summary judgment was entered against her three years ago, on December 27, 2019”]; see also 12/20/19 Minutes [granting summary adjudication in favor of LADWP against the four causes of action pleaded in Plaintiff’s SAC]; 12/27/19 Judgment [judgment in light of the December 20, 2019 ruling].)

Even if the matter were not untimely, Plaintiff has not set forth any basis for granting the motion where she was represented during the hearing on the motion for summary judgment in 2019; where she was timely informed by her attorney that the judge had ruled against her; and where she took no action, nor has explained why she failed to take any action, for nearly three years, long after the time for any appeal or motion for reconsideration or to set aside the matter had run. Rearguing the merits of the summary judgment motion does not provide any basis for setting aside an order which has long since become final.

Conclusion

Plaintiff Jeanette France’s Motion for Summary Judgment—in fact a motion to set aside and vacate the December 2019 summary judgment ruling and resulting judgment against her—is DENIED.