Judge: Barbara M. Scheper, Case: 21STCV27738, Date: 2022-12-05 Tentative Ruling
Case Number: 21STCV27738 Hearing Date: December 5, 2022 Dept: 30
Calendar No.
Stepanova vs. Polymath
Development Group, et. al., Case No. 21STCV27738
Tentative Ruling re: Defendant’s Motion to Vacate Order
Defendant Polymath Development Group, Inc. dba Next
Generation Builders (Defendant) moves for an order setting aside the Court’s September
29, 2022 ruling compelling Defendant to provide further discovery responses and
imposing monetary sanctions. The motion is denied.
Under Code of Civil Procedure
section 473, subdivision (b): “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.”
“The provision of
section 473 which mandates relief from a judgment of dismissal or default when
the motion is based on an attorney's affidavit of fault does not mandate relief
from other judgments. In all other cases, relief is discretionary.” (Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 681.) To obtain discretionary relief
under section 473, subdivision (b), the party moving for relief on the basis of
“mistake, inadvertence, surprise, or excusable neglect” must show specific
facts demonstrating that one of these conditions was met. (Hopkins &
Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)
On
September 29, 2022, the Court entered an order compelling further discovery responses
from Defendants Esteban Solorio Araya, Angelina Gorbaseva, and Polymath
Development Group, and imposing monetary sanctions against the Defendants and
their counsel in the amount of $4,184.95. The motions were unopposed and
defense counsel did not appear at the hearing.
Counsel
for Defendants states that he did not oppose the motions or appear at the
hearing due to a calendaring error. (Badkoubehi Decl. 6-8.) Counsel states that his computer crashed
following the filing of Plaintiff’s motions, that he subsequently had to create
a manual calendar for his cases, and that he mistakenly did not enter
Plaintiff’s motions in the calendar. (Badkoubehi Decl. 4-6.)
“To
determine whether the [attorney’s] mistake was excusable, the court will
inquire whether the same error might have been made by ‘a reasonably prudent
person under the same or similar circumstances....’ [Citation.] Conduct falling
below the professional standard of care, such as failure to timely object or to
properly advance an argument, is not therefore excusable.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th
674, 682.)
The Court finds defense
counsel’s declaration insufficient to establish excusable neglect warranting
discretionary relief under section 473(b). Plaintiff’s motions were filed six
months prior to the hearing, on March 3 and March 18, 2022. On July 19, 2022, Plaintiff
provided notice to Defendants of the September 29, 2022 hearing date. (Garibyan
Decl. 20, Ex. 22 [164].) Defendants’ counsel was notified via email of the
Court’s tentative ruling on the motions on September 28. (Garibyan Decl. 21,
Ex. 23 [170].) Defendants’ counsel failure to file any oppositions to the
motions, or to appear at the hearing despite notice were not “excusable” under
section 473. (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1424 [“Discretionary
relief need not be granted for ‘errors by [counsel] ... in failing to calendar
and appear’ at a hearing”].)
Accordingly, the motion
is denied.
Plaintiff requests an
award of monetary sanctions against Defendants and their counsel for attorney’s
fees and costs incurred in connection with this motion. When relief from
judgment is granted under section 473(b) “upon any terms as may be just,” “such
terms frequently condition relief . . . on the payment of an adversary's fees
and costs.” (Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118; see
Code Civ. Proc. § 473, subd. (c).) Here,
Defendants have not sought nor obtained relief from judgment or default, and so
the Court declines to award sanctions.