Judge: Christian R. Gullon, Case: 21STCV10352, Date: 2025-02-14 Tentative Ruling

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Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

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Case Number: 21STCV10352    Hearing Date: February 14, 2025    Dept: O

Tentative Ruling

PLAINTIFF’S NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE DISMISSAL is DENIED.

Background

This case arises from a slip and fall case.

On March 17, 2021, Plaintiff Joseph Manuel Macias filed suit against Defendants Albertsons Companies, Inc.; KCAL P&C Insurance (“KCAL”); and Services SLX Property, LLC (“SLX”) for negligence and premises liability from injuries arising from an August 22, 2019 accident.

On April 21, 2021, Plaintiff filed his first amended complaint (FAC) for (1) general negligence and (2) premises liability (wherein he slipped water that was draining from the building pipes located/near the store).[1]

On April 23, 2021, Plaintiff filed an amendment to complaint naming the Vons Companies, Inc. as Doe 1.

On May 6, 2021, Plaintiff dismissed Albertsons Companies, Inc.

On May 17, 2021, Defendant KCAL filed its answer and that same day filed a cross-complaint (CC) against SLX for EXPRESS INDEMNITY; EQUITABLE INDEMNITY; CONTRIBUTION; BREACH OF IMPLIED WARRANTY AND DECLARATORY RELIEF.

On June 7, 2021, Vons filed its answer to the FAC and that same day filed a CC against KCAL, SLX, Jose Percy Sam; and Yuet Ngan Yuen De Sam for equitable indemnity.

On July 29, 2021, KCAL filed its answer to Vons’ CC.

On August 30, 2021, SLX filed its answer to Plaintiffs’ FAC.

On October 29, 2021, SLX filed its answer to Vons’ CC and that same day filed a CC against KCAL for (1) CONTRIBUTION (2) EQUITABLE INDEMNITY (3) IMPLIED INDEMNITY (4) EXPRESS INDEMITY.

On February 3, 2022, SLX filed its answer to KCAL’s CC.

On December 6, 2023, SLX filed an MSJ (ISSUE 1 – KCAL has a duty to defend SLX against the claims of Plaintiff as alleged in the 2^nd COA for Express Indemnity against KCAL in SLX's Cross-Complaint; MSJ p. 2). (The hearing is set for 12/10/2024.)

On January 2, 2024,[2] Plaintiff filed a second amended complaint (SAC)[3] wherein, seemingly dismissing his negligence based COAs, asserts the following two COAs:[4]

1.     Unruh Civil Rights Act

2.     Violations of the Disabled Persons Act (Civ. Code, § 54.1 et seq).[5]

On March 27, 2024, Vons filed the instant DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT x MTS. That same day, SLX filed a demurrer x MTS to the SAC.

On April 12, 2024, Plaintiffs filed a consolidated opposition ‘PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION TO DEMURRERS OF DEFENDANTS SLX PROPERTY, LLC AND THE VONS COMPANIES, INC.’

On April 15, 2024, KCAL filed a ‘NOTICE OF JOINDER IN DEFENDANT THE VONS COMPANIES, INC.’ AND SLX PROPERTY, LLC ’S NOTICES OF DEMURRER AND DEMURRERS AND MOTIONS TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT.’ 

On June 24, 2024, the court held oral arguments on the demurrers x MTS.

On August 21, 2024, Plaintiff filed a third amended complaint (erroneously filed and captioned as a second amended complaint)[6] alleging causes of action for:

1.     Premises liability

2.     Negligence

On September 23, 2024, the court held its CMC; Plaintiff’s counsel did not make an appearance.

On October 30, 2024, the court held oral argument on Defendants’ motion to strike Plaintiff’s SAC and a request for dismissal. After oral argument, the court granted the motions to strike the proposed amended complaint and dismissed the complaint against the three defendants (Vons, SLX, and KCAL).

On November 25, 2024, Plaintiff filed the instant motion.

On December 26, 2024, Vons filed its opposition.

On December 27, 2024, SLX filed its opposition; KCAL filed a joinder to both.

On January 6, 2025, Plaintiff filed his reply.[7]

Legal Standard[8]

Plaintiff seeks relief under both the mandatory and discretionary provisions of Code of Civil Procedure section 473. (Motion p. 4:1-4.)

The discretionary language of Section 473 reads: “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.” (Code Civ. Proc., § 473(b).)

The “range of adverse litigation results from which [mandatory] relief can be granted is narrower” than that from which discretionary relief is available. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.) Specifically, the statute reads “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.” (Code Civ. Proc., § 473(b).)[9] The purpose of the mandatory relief provision is to “relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.) “The range of attorney conduct for which relief can be granted … is broader than that in the discretionary provision, and includes inexcusable neglect.” (Leader, supra, 89 Cal.App.4th at p. 616.) That does mean that the mandatory provision is “intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in a dismissal.” (Id. at p. 618.)

A party can obtain mandatory relief only if that moving party submits an attorney declaration that straightforwardly admits to counsel's mistake, inadvertence, surprise, or neglect. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; see also Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 916.)

Discussion

Plaintiff moves for relief on the grounds that there was miscommunication between Plaintiff’s Counsel and associated counsel, The Pollard Firm, APC, wherein neither office properly calendared the court-imposed deadline. (Motion p. 5.) For reasons to be explained below, neither form of relief is available.

The Declaration is Inadmissible Hearsay

At the outset, the court turns to Counsel Ibarra’s declaration. The attorney declaration is subject to scrutiny by the court as “[t]he statute clearly involves an assessment of credibility by the trial court.” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 485–486.) The declaration, which is brief, states, in relevant part, that “The [attorneys’] collective failure to refile the FAC was due solely to a singular calendar mistake and a one-time miscommunication between my office and The Pollard Firm.” (Ibarra Decl., ¶6.)

Here, both Defendants correctly argue that the statement is inadmissible hearsay because it is statement by Counsel Ibarra as to the Pollard Firm’s calendaring error, an error of which Counsel Ibarra has no personal knowledge. Of note, Co-Counsel Pollard did not submit a declaration to clarify any issues as to the miscommunication and who, as noted by Defendants, is equally responsible. To the extent that Plaintiff on page 4 of his reply cites to Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160 for the proposition that “[c]ourts have broad discretion to consider declarations when justice so requires, even if they do not strictly conform to procedural formalities,” the case does not provide such a principle. If anything, the Tentative Ruling

PLAINTIFF’S NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE DISMISSAL is DENIED.

Background

This case arises from a slip and fall case.

On March 17, 2021, Plaintiff Joseph Manuel Macias filed suit against Defendants Albertsons Companies, Inc.; KCAL P&C Insurance (“KCAL”); and Services SLX Property, LLC (“SLX”) for negligence and premises liability from injuries arising from an August 22, 2019 accident.

On April 21, 2021, Plaintiff filed his first amended complaint (FAC) for (1) general negligence and (2) premises liability (wherein he slipped water that was draining from the building pipes located/near the store).[1]

On April 23, 2021, Plaintiff filed an amendment to complaint naming the Vons Companies, Inc. as Doe 1.

On May 6, 2021, Plaintiff dismissed Albertsons Companies, Inc.

On May 17, 2021, Defendant KCAL filed its answer and that same day filed a cross-complaint (CC) against SLX for EXPRESS INDEMNITY; EQUITABLE INDEMNITY; CONTRIBUTION; BREACH OF IMPLIED WARRANTY AND DECLARATORY RELIEF.

On June 7, 2021, Vons filed its answer to the FAC and that same day filed a CC against KCAL, SLX, Jose Percy Sam; and Yuet Ngan Yuen De Sam for equitable indemnity.

On July 29, 2021, KCAL filed its answer to Vons’ CC.

On August 30, 2021, SLX filed its answer to Plaintiffs’ FAC.

On October 29, 2021, SLX filed its answer to Vons’ CC and that same day filed a CC against KCAL for (1) CONTRIBUTION (2) EQUITABLE INDEMNITY (3) IMPLIED INDEMNITY (4) EXPRESS INDEMITY.

On February 3, 2022, SLX filed its answer to KCAL’s CC.

On December 6, 2023, SLX filed an MSJ (ISSUE 1 – KCAL has a duty to defend SLX against the claims of Plaintiff as alleged in the 2^nd COA for Express Indemnity against KCAL in SLX's Cross-Complaint; MSJ p. 2). (The hearing is set for 12/10/2024.)

On January 2, 2024,[2] Plaintiff filed a second amended complaint (SAC)[3] wherein, seemingly dismissing his negligence based COAs, asserts the following two COAs:[4]

1.     Unruh Civil Rights Act

2.     Violations of the Disabled Persons Act (Civ. Code, § 54.1 et seq).[5]

On March 27, 2024, Vons filed the instant DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT x MTS. That same day, SLX filed a demurrer x MTS to the SAC.

On April 12, 2024, Plaintiffs filed a consolidated opposition ‘PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION TO DEMURRERS OF DEFENDANTS SLX PROPERTY, LLC AND THE VONS COMPANIES, INC.’

On April 15, 2024, KCAL filed a ‘NOTICE OF JOINDER IN DEFENDANT THE VONS COMPANIES, INC.’ AND SLX PROPERTY, LLC ’S NOTICES OF DEMURRER AND DEMURRERS AND MOTIONS TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT.’ 

On June 24, 2024, the court held oral arguments on the demurrers x MTS.

On August 21, 2024, Plaintiff filed a third amended complaint (erroneously filed and captioned as a second amended complaint)[6] alleging causes of action for:

1.     Premises liability

2.     Negligence

On September 23, 2024, the court held its CMC; Plaintiff’s counsel did not make an appearance.

On October 30, 2024, the court held oral argument on Defendants’ motion to strike Plaintiff’s SAC and a request for dismissal. After oral argument, the court granted the motions to strike the proposed amended complaint and dismissed the complaint against the three defendants (Vons, SLX, and KCAL).

On November 25, 2024, Plaintiff filed the instant motion.

On December 26, 2024, Vons filed its opposition.

On December 27, 2024, SLX filed its opposition; KCAL filed a joinder to both.

On January 6, 2025, Plaintiff filed his reply.[7]

Legal Standard[8]

Plaintiff seeks relief under both the mandatory and discretionary provisions of Code of Civil Procedure section 473. (Motion p. 4:1-4.)

The discretionary language of Section 473 reads: “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.” (Code Civ. Proc., § 473(b).)

The “range of adverse litigation results from which [mandatory] relief can be granted is narrower” than that from which discretionary relief is available. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.) Specifically, the statute reads “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.” (Code Civ. Proc., § 473(b).)[9] The purpose of the mandatory relief provision is to “relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.) “The range of attorney conduct for which relief can be granted … is broader than that in the discretionary provision, and includes inexcusable neglect.” (Leader, supra, 89 Cal.App.4th at p. 616.) That does mean that the mandatory provision is “intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in a dismissal.” (Id. at p. 618.)

A party can obtain mandatory relief only if that moving party submits an attorney declaration that straightforwardly admits to counsel's mistake, inadvertence, surprise, or neglect. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; see also Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 916.)

Discussion

Plaintiff moves for relief on the grounds that there was miscommunication between Plaintiff’s Counsel and associated counsel, The Pollard Firm, APC, wherein neither office properly calendared the court-imposed deadline. (Motion p. 5.) For reasons to be explained below, neither form of relief is available.

The Declaration is Inadmissible Hearsay

At the outset, the court turns to Counsel Ibarra’s declaration. The attorney declaration is subject to scrutiny by the court as “[t]he statute clearly involves an assessment of credibility by the trial court.” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 485–486.) The declaration, which is brief, states, in relevant part, that “The [attorneys’] collective failure to refile the FAC was due solely to a singular calendar mistake and a one-time miscommunication between my office and The Pollard Firm.” (Ibarra Decl., ¶6.)

Here, both Defendants correctly argue that the statement is inadmissible hearsay because it is statement by Counsel Ibarra as to the Pollard Firm’s calendaring error, an error of which Counsel Ibarra has no personal knowledge. Of note, Co-Counsel Pollard did not submit a declaration to clarify any issues as to the miscommunication and who, as noted by Defendants, is equally responsible. To the extent that Plaintiff on page 4 of his reply cites to Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160 for the proposition that “[c]ourts have broad discretion to consider declarations when justice so requires, even if they do not strictly conform to procedural formalities,” the case does not provide such a principle. If anything, the principle supports the contrary which is that trial courts’ local rules must comply with applicable statutes.

Therefore, considering no declaration by Counsel Pollard and the hearsay in Counsel Ibarra’s declaration, the court finds the declaration insufficient for purposes of mandatory relief.[10]

Merits

Even assuming arguendo that the declaration was admissible, applying the legal principles above, the court would find neither form of relief unavailable.

First, Vons, by citing to Leader, argues that mandatory relief is unavailable because Plaintiff’s attorneys filed an opposition to the motion to strike and dismiss. (Vons Opp. p. 4 [Header A].) Indeed, the statute has been construed to apply only to “dismissals which are the procedural equivalent of defaults-i.e., those which occur because the plaintiff's attorney has failed to oppose a dismissal motion.’ [Citations.]” (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 618.) The provision “was [not] intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.” (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 142; see also Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483 [“This interpretation is consistent with the statute's policy to put plaintiffs whose cases are dismissed for counsel's failure to respond to the dismissal motion on the same footing as defendants who have defaulted because of counsel's failure to respond.”].) Here, Plaintiff did oppose the motion to strike and dismiss filed by both SLX and Vons. Thus, mandatory relief would be unavailable. Plaintiff does not address this point in Reply.

Second, even assuming that mandatory relief is available when counsel files an opposition to the motion to strike/dismiss, the court did not dismiss the complaint against Defendants solely for the untimely filing of an amended complaint. Defendants sought dismissal pursuant to Section 581 subdivision (f), which provides that a court may dismiss the complaint after a demurrer to the complaint is sustained with leave to amend but the plaintiff fails to amend it within the time allowed by the court. “The phrase ‘may dismiss’ means discretionary dismissal.” (Cano v. Glover (2006) 143 Cal.App.4th 326, 329, 48 Cal.Rptr.3d 871 (Cano).) As dismissing a complaint for the mere failure to timely file an amended complaint would likely be construed as an abuse of discretion, this court focused on something else: Plaintiff’s Counsel’s decision to exceed the scope of leave to amend. Put differently, while the failure to timely file an amended complaint may have triggered the court’s ability to dismiss the complaint, the court’s decision to do so rested predominantly if not solely upon Plaintiffs’ Counsel’s intentional decision to plead facts in direct circumvention of the court’s order, a point which neither Counsel Ibarra nor Counsel Pollard addressed during the 10/30/24 hearing. The court’s decision to dismiss the complaint based upon the failure to abide by a court order was underscored in the conclusion section of the 10-30-24 ruling. And mandatory relief is not available for attorney conduct that is deliberate. (Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45–46.)

[10] As pointed out by Defendants, neither the Motion, supporting Declaration, nor the proof of service were signed. (The reply is signed.) supports the contrary which is that trial courts’ local rules must comply with applicable statutes.

Therefore, considering no declaration by Counsel Pollard and the hearsay in Counsel Ibarra’s declaration, the court finds the declaration insufficient for purposes of mandatory relief.[10]

Merits

Even assuming arguendo that the declaration was admissible, applying the legal principles above, the court would find neither form of relief unavailable.

First, Vons, by citing to Leader, argues that mandatory relief is unavailable because Plaintiff’s attorneys filed an opposition to the motion to strike and dismiss. (Vons Opp. p. 4 [Header A].) Indeed, the statute has been construed to apply only to “dismissals which are the procedural equivalent of defaults-i.e., those which occur because the plaintiff's attorney has failed to oppose a dismissal motion.’ [Citations.]” (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 618.) The provision “was [not] intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.” (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 142; see also Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483 [“This interpretation is consistent with the statute's policy to put plaintiffs whose cases are dismissed for counsel's failure to respond to the dismissal motion on the same footing as defendants who have defaulted because of counsel's failure to respond.”].) Here, Plaintiff did oppose the motion to strike and dismiss filed by both SLX and Vons. Thus, mandatory relief would be unavailable. Plaintiff does not address this point in Reply.

Second, even assuming that mandatory relief is available when counsel files an opposition to the motion to strike/dismiss, the court did not dismiss the complaint against Defendants solely for the untimely filing of an amended complaint. Defendants sought dismissal pursuant to Section 581 subdivision (f), which provides that a court may dismiss the complaint after a demurrer to the complaint is sustained with leave to amend but the plaintiff fails to amend it within the time allowed by the court. “The phrase ‘may dismiss’ means discretionary dismissal.” (Cano v. Glover (2006) 143 Cal.App.4th 326, 329, 48 Cal.Rptr.3d 871 (Cano).) As dismissing a complaint for the mere failure to timely file an amended complaint would likely be construed as an abuse of discretion, this court focused on something else: Plaintiff’s Counsel’s decision to exceed the scope of leave to amend. Put differently, while the failure to timely file an amended complaint may have triggered the court’s ability to dismiss the complaint, the court’s decision to do rested predominantly if not solely upon Plaintiffs’ Counsel’s intentional decision to plead facts in direct circumvention of the court’s order, a point which neither Counsel Ibarra nor Counsel Pollard addressed during the 10/30/24 hearing. The court’s decision to dismiss the complaint based upon the failure to abide by a court order was underscored in the conclusion section of the 10-30-24 ruling. And mandatory relief is not available for attorney conduct that is deliberate. (Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45–46.)