Judge: Ashfaq G. Chowdhury, Case: 23GDCV00081, Date: 2023-10-27 Tentative Ruling

Case Number: 23GDCV00081    Hearing Date: April 12, 2024    Dept: E

Hearing Date:       04/12/2024 – 8:30am
Case No.            23GDCV00081
Trial Date:         UNSET
Case Name:          ROBERTO CARLOS ALVAREZ, an individual; v.                       SUBARU OF AMERICA, INC., a New Jersey                           Corporation, and DOES 1-10

[TENTATIVE RULING– MOTION TO SET ASIDE/VACATE SUMMARY JUDGMENT]

RELIEF REQUESTED¿ 
“Plaintiff,  Roberto Carlos Alvarez, will and hereby does move this Court for an order to proactively set aside the Court’s order granting Defendant, Subaru of America, Inc’s (“Defendant” or “SOA”), Motion for Summary Judgment (“MSJ”), and granting leave to file an Opposition to the MSJ.

Plaintiff’s Motion is made pursuant to California Code of Civil Procedure, section 473, subdivision (b) on the grounds that due to a clerical oversight and excusable neglect in Plaintiff’s counsel’s office’s calendaring department, Plaintiff failed to file an Opposition to SOA’s MSJ. (Declaration of Luis A. Serrano [“LS Decl.”], ¶¶ 3-4.)

Accordingly, Plaintiff respectfully requests that the Court grant Plaintiff’s Motion and set aside its October 27, 2023, Order, as a result of Plaintiff’s counsel’s failure to timely oppose the MSJ, based on the aforementioned grounds, and grant leave to file an Opposition so as to allow resolution on the merits. (LS Decl., ¶¶ 5-19.)

This Motion is based on this Notice, the Memorandum of Points and Authorities, the Declaration of Luis A. Serrano, Esq., the Proposed Order filed concurrently herewith, the papers and pleadings on file, as well as any oral argument or other such evidence as may be presented at the time of the hearing.”

Procedural
Moving Party:  Plaintiff, Roberto Carlos Alvarez
Responding Party: It is uncertain if Defendant, Subaru of America, Inc. responded

Moving Papers: Motion; Serrano Declaration
Opposition Papers: Uncertain – on 1/16/2024, Defendant submitted an Opposition to Plaintiff’s ex parte application. It is unclear if the Opposition to the ex parte was intended to be an Opposition to the instant motion. The Court will hear argument as to whether or not the Opposition to the ex parte is also intended to be the Opposition to the instant motion to vacate. The Court will also hear argument as to if the Court has the authority to consider the Opposition to the ex parte as an Opposition to the motion to vacate.
Reply Papers: No Reply as of 4/9/2024, Reply due 4/5/2024

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): Ok

BACKGROUND
Defendant filed a motion for summary judgment as to all three causes of action in Plaintiff’s Complaint. On 10/27/2023, this Court heard Defendant’s motion for summary judgment. No Opposition was submitted by Plaintiff, and Plaintiff failed to appear at the hearing. On 10/27/2023, this Court entered judgment on Defendant’s motion for summary judgment on all claims in favor of the Defendant.

Plaintiff now seeks to set aside the Court’s order granting Defendant’s MSJ and granting leave to file an Opposition to the MSJ. Plaintiff moves for relief pursuant to CCP §473(b).

LEGAL STANDARD – MOTION TO VACATE/SET ASIDE
CCP § 473(b) states as follows:

The 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise 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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(CCP §473(b).)

ANALYSIS

Mandatory Relief
Plaintiff moves for relief both under the discretionary relief portion of § 473(b) and the mandatory relief portion of § 473(b).

As a preliminary matter, the Court notes that affording relief under the mandatory provision appears to provide an easier hurdle for a movant to leap than the discretionary provision.

This appears to be the case because the mandatory relief provision allows for relief even when the attorney error is inexcusable. (See Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 57-58; “[A] party is entitled to mandatory relief under section 473(b), even when the attorney error is inexcusable, so long as the attorney affidavit of fault shows the error was the fault of the attorney rather than the client.” Id.)

Further, meeting the burden for relief under the mandatory provision appears easier in the sense that the mandatory provision does not contain language that the application must be made within a reasonable time. “An application under the discretionary relief provision ‘shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.’” (Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 58.) “Unlike the discretionary ground for relief, a motion based on attorney fault need not show diligence in seeking relief. The motion is timely filed within six months of the entry of the default judgment or dismissal.” (Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1323 citing Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147.)

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (CCP § 473(b).)

As indicated in the mandatory provision cited above, this relief appears to pertain to dismissals and default judgments. Here, Plaintiff argues that the mandatory provision also provides relief in the instant scenario – for rulings on summary judgment.

Plaintiff’s argument that the mandatory provision can be used here to grant Plaintiff relief is incorrect.

As a preliminary matter, the Court notes that if the ex parte Opposition can be considered as an Opposition to this motion, the Court notes that the Opposition did not address the issue of whether or not the mandatory provision applies. However, despite Defendant failing to oppose this issue, and despite Plaintiff’s counsel “wholeheartedly” apologizing for the circumstances underlying the instant motion, Plaintiff’s counsel still cited case law that was overruled nearly seven years ago to support its argument that the mandatory relief provision is applicable here.

Plaintiff cites Avila v. Chua (1997) 57 Cal.App.4th 860 at 866, 868 and In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438 to argue that mandatory relief under § 473(b) is applicable for failure to file an opposition to an MSJ.

Both Avila and In re Marriage of Hock were Second District, Division 5, Court of Appeal decisions. Plaintiff fails to mention that The Urban Wildlands Group, Inc. v. City of Los Angeles, a 2017 decision by the Second District, Division 5, Court of Appeal disapproved of their prior opinions in Avila and Hock.

“Avila extended the scope of the mandatory relief provisions to a scenario where the plaintiff’s attorney failed to timely file an opposition to the defendant’s summary judgment motion.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000 citing Avila at 867-868.) “Having the benefit of reviewing English and its progeny, we disapprove of our prior opinions in Avila and Hock.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000.) “Summary judgments are neither defaults, nor default judgments, nor dismissals.” (Id.) “As the English court said: ‘It is not an appellate court’s task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations ‘analogous’ to those the statute explicitly addresses.” (Id.) “[U]pon reconsideration, we conclude our analysis in Avila and Hock broadly construing section 473, subdivision (b) default, default judgment, or dismissal language as incorrect.” (Id. at 1002.)

Therefore, the Court does not find Plaintiff’s argument availing that he can avail himself to the mandatory relief provision of § 473(b). It appears that if Plaintiff is to demonstrate grounds for relief under § 473(b), it would have to demonstrate relief under the discretionary provision because the discretionary provision appears to grant relief from a broader range of adverse litigation results based on relief being allowed for “judgment, dismissal, order, or other proceeding.”

Discretionary Relief

The discretionary relief provision of § 473(b) states, “The 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise 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.” (Ibid.)

Mistake, Inadvertence, Surprise, or Excusable Neglect
“The 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.” (CCP § 473(b).)

Plaintiff argues that failing to file an opposition to the MSJ was the result of excusable neglect and inadvertent clerical oversight. Plaintiff submits the declaration of its counsel Luis A. Serrano.

Serrano alleges that Defendant filed and served its MSJ through third-party court-filing vendor Pac Track Legal. (Serrano Decl. ¶6.) Serrano alleges that since his office had never received prior email-service through Pac Track, the e-service email was immediately directed and archived within the firm’s junk mail folder. (Id at ¶7.) As a result, Serrano alleges that neither the firm’s calendaring department nor the firm’s associates ever came into receipt of or became aware of Defendant’s e-service of its MSJ. (Id.) Serrano attached as Exhibit A to his declaration a screenshot of the firm’s junk folder containing the e-service emails. (Id.)

Serrano alleges that Defendant’s counsel normally serves documents directly through its paralegals by emailing Plaintiff’s firm’s e-service address. (Serrano Decl. ¶8.) Serrano alleges that in light of the MSJ remaining in the firm’s junk email folder, neither the MSJ hearing date nor the corresponding deadlines were added to the firm’s calendar, which is why Plaintiff failed to oppose the MSJ and failed to appear for the hearing. (Id. at ¶9.)

Plaintiff also argues that the aforementioned conduct falls within the allowable conduct for mistake, inadvertence, surprise, and excusable neglect under the discretionary relief provision of 473(b) based on the case law in : Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 at 254, 257- 258; Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898-899; and Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388–395. Plaintiff argues that its conduct does not rise to the level of positive misconduct nor inexcusable neglect that would preclude discretionary relief. Plaintiff argues that the discretionary relief provision applies to attorney’s failure to meet a procedural deadline, such as timely opposing an MSJ based on Zamora and Lee.

To the extent that Defendant’s ex parte Opposition is considered at this hearing, Defendant argues that the contention that the MSJ went to Plaintiff’s spam folder is not credible because Plaintiff’s attorneys obviously received other papers that were served by Defendant the same way as the MSJ was served. Defendant argues that it served an Opposition to Plaintiff’s motion to compel on August 21, 2023, and since Plaintiff filed a Reply and objections, this indicates that Plaintiff received prior papers by Defendant.

Defendant argues that Plaintiff’s attorney offers no explanation as to why they would have received Defendant’s Opposition to a motion to compel, but not to the Defendant’s MSJ.

Discussion - Mistake, Inadvertence, Surprise, or Excusable Neglect
Here, Plaintiff seeks relief based on its attorney’s conduct as opposed to the client’s conduct.

“A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 citing Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.)

In determining whether the attorney’s mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) In other words, the discretionary relief provision of section 473 only permits relief from attorney error “fairly imputable to the client, i.e., mistakes anyone could have made.” (Zamora citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” (Id.)

Here, the Court will hear argument.

The Lee, Carroll, and Daley cases that Plaintiff cites are inapposite, distinguishable, and if anything, go against Plaintiff’s argument for granting relief.

However, based on Zamora, it appears as if the type of mistake here could possibly be characterized as a “mistake anyone could have made,” if Plaintiff truly did not receive the service of the documents based on how its emailing system archived the emails into the junk folder.

In Zamora, the appeal arose out of a typo wherein an attorney’s legal assistant typed the word “against” instead of the phrase “in favor of” when typing up an offer to compromise. (Zamora at ¶252.)

The court found the mistake by Zamora’s counsel to be excusable and stated:

The erroneous substitution of the word “against” for the phrase “in favor of” is a clerical or ministerial mistake that could have been made by anybody. While counsel's failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances. Indeed, appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff. For example, courts have set aside judgments where: (1) The attorney mistakenly checked the “with prejudice” box instead of the “without prejudice” box (see Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237 [283 Cal.Rptr. 878] (Romadka)); (2) an associate misinterpreted the instructions of the lead attorney and gave incorrect information at a hearing (see Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359 [5 Cal.Rptr. 461]); and (3) the attorney's secretary lost the answer to be filed (see Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276 [274 P.2d 930]).

(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 259.)

Although Zamora also states that conduct falling below the professional standard of care, such as failure to timely object, is not excusable, it appears that the reason Plaintiff here did not file an opposition is because the error that caused Plaintiff to not oppose the motion was more so clerical in nature that could be made by anyone since the email allegedly went to the junk mail folder.

To fully assess whether Plaintiff’s counsel’s mistake was excusable, the Court will have to hear argument and assess credibility at the hearing. While Defendant argues that Plaintiff offered no explanation as to why Plaintiff received a prior opposition to a motion to compel, this may potentially be explained by Plaintiff arguing that Defendant normally served documents directly through its paralegals by emailing Plaintiff’s firm’s e-service address. So it is possible that the MSJ that Defendant argues Plaintiff received was served in a different manner than the opposition to the motion to compel that Plaintiff allegedly received. At the hearing, both parties should come forward with the proofs of service for both the MSJ and the opposition to the motion to compel to assess the credibility of both parties’ arguments.

Copy of the Answer or Other Pleading Proposed to be Filed

“Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted…”(CCP § 473(b).)

Here, Plaintiff did not file the proposed pleading to be filed. Here, that would be the Opposition to the MSJ. Defendant points out in the opposition to the ex parte that Plaintiff did not file an Opposition to the MSJ with this motion.

Made Within a Reasonable Time, in No Case Exceeding Six Months

“…and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)

“The determination of whether a moving party has filed for relief with reasonable alacrity is addressed to the sound discretion of the trial court whose discretion will not be overturned on appeal absent a clear showing of abuse of discretion.” (Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1200.)

As a preliminary matter, this motion was made within six months.

The main issue is whether or not the motion was made within a reasonable amount of time.

Plaintiff argues it was made within a reasonable amount of time because it first learned about the Court’s granting of Defendant’s MSJ during a phone conversation with opposing counsel on January 10, 2024.

Since the instant motion was filed on 2/13/2024, it appears as if this motion was timely made.

However, Defendant argues that Plaintiff waited four months to file this motion under the theory that Plaintiff would have known about the Notice of Entry of Judgment mailed on October 30, 2023 when the Court issued a notice of entry of judgment.

Plaintiff argues it did not know about the notice of entry of judgment back in October because no physical copy was found in Plaintiff’s counsel’s folders.

Here, the Court will hear from counsel.

TENATIVE RULING

The Court does not have a tentative ruling at this time.

Sanctions
Under § 473(c):

(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

(CCP §473(c)(1)-(2).)

The Court will also hear argument as to the issue of sanctions: neither party discussed this issue in the briefing.