Judge: Colin Leis, Case: 20STCV23324, Date: 2022-09-22 Tentative Ruling

Case Number: 20STCV23324    Hearing Date: September 22, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant Eric S. Chan, M.D.

RESPONDING PARTY:       Plaintiffs Hilary Trang and Hing Ang

Defendant Eric S. Chan, M.D.’s Motion for Attorney’s Fees and Costs Pursuant to Code of Civil Procedure § 473(b)

The court considered the moving papers, opposition, and reply filed in connection with this motion.

BACKGROUND

            Plaintiffs Hilary Trang (“Trang”) and Hing Ang filed this action on June 19, 2020, asserting two causes of action: (1) medical malpractice and (2) loss of consortium.

Defendant Eric S. Chan, M.D. (“Dr. Chan”) filed two motions for summary judgment. The first, filed on December 13, 2021, was based on a statute of limitations argument and was denied on March 7, 2022. The second, filed on December 29, 2021, was based on a standard of care argument, and was granted on March 17, 2022. While Plaintiffs opposed the first motion, Plaintiffs failed to oppose the second motion. On May 2, 2022, the court issued an order granting Plaintiffs’ motion to vacate the March 17, 2022 order granting the second motion for summary judgment. Plaintiffs moved for relief under, inter alia, Code of Civil Procedure section 473, subdivision (b), arguing that the failure to oppose the second motion for summary judgment was the result of Plaintiffs’ counsel’s excusable neglect. 

Dr. Chan now moves for an award of attorney’s fees and costs pursuant to Code of Civil Procedure section 473, subdivision (b).

DISCUSSION

The opening sentence of Code of Civil Procedure section 473, subdivision (b) permits a court to exercise its discretion to relieve a party from an “order . . . taken against him or her through his or her . . . excusable neglect.” Relief based on that language is discretionary. Other language toward the end of section 473, subdivision (b) makes relief mandatory, however, for defaults, default judgments, and dismissals so long as an attorney affidavit of fault accompanies the request. (Code Civ. Proc., § 473, subd. (b); see also Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 5:290.) When a court grants mandatory relief based on an attorney’s affidavit of fault, the court “shall” direct the at-fault attorney to pay the other party’s reasonable attorney’s fees and costs.

Here, the relief requested (and granted) was to vacate the March 17, 2022 order granting the second motion for summary judgment. The court had not entered a default, default judgment, or dismissal when Plaintiffs filed their motion for relief. Therefore, the court necessarily granted relief under the discretionary authority in section 473, subdivision (b)’s first sentence. Moreover, the court notes that it found that Plaintiffs demonstrated excusable neglect in failing to oppose the second motion for summary judgment, which further supports the conclusion that the relief granted was under the discretionary provisions of section 473, subdivision (b). (In contrast, the mandatory provision of section 473 requires relief for attorney “neglect” without needing to show the neglect was excusable.) Because Dr. Chan relies upon the mandatory relief provision of section 473, subdivision (b), which by its own terms does not apply to setting aside an order, the court finds Dr. Chan has not demonstrated he is entitled to recover his attorney’s fees and costs.

CONCLUSION

Based on the foregoing, the court denies Dr. Chan’s motion for fees.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 22, 2022

_____________________________

Colin Leis

Judge of the Superior Court