Judge Cynthia A Freeland, Case Number: 37-2021-00035457-CU-MM-NC, Date: 2024-04-26 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00035457-CU-MM-NC, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 25, 2024

04/26/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Medical Malpractice Motion to Dismiss 37-2021-00035457-CU-MM-NC RATKOCZY VS CURRY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 12/01/2023

Plaintiff Magdalena Ratkoczy ('Plaintiff')'s motion to set aside order for summary judgment is denied.

On August 18, 2021, Plaintiff commenced this action by filing a Complaint against Defendants Jason D.

Curry, M.D. and Tri-City Orthopedic Surgery Medical Group dba Orthopedic Specialists of North County, Inc. (collectively, 'Defendants'). See ROA No. 1. On March 8, 2023, Defendants served Plaintiff with Defendants' motion for summary judgment electronically and via U.S. mail. See ROA No. 42, p. 11. The Notice of Motion reflects a hearing date of June 2, 2023. Ibid. Plaintiff did not file and serve an opposition to Defendants' summary judgment motion by the statutory deadline to do so. On May 25, 2023, Defendants served Plaintiff with Defendants' Notice of Non-Opposition electronically and via U.S. mail.

See ROA No. 49; Cruse Decl., Ex. A. On June 2, 2023, the court conducted a hearing on Defendants' summary judgment motion, which hearing neither Plaintiff nor her attorney attended. The court ultimately granted Defendants' summary judgment motion given: (1) the lack of opposition by Plaintiff, which the court construed as a concession of the motion's merits (see San Diego Rules of Court, Rule 2.1.19.B), and (2) the unrefuted evidence that Defendants' conduct did not fall below the pertinent standard of care and, therefore, there was no evidence of Defendants' breach and/or evidence of causation as would be required to prevail on a professional/medical negligence claim (the 'Order'). See ROA No. 51; Cruse Decl., Ex. B. On June 6, 2023, Defendants served Plaintiff with a Notice of Ruling in connection with the summary judgment motion electronically and via U.S. mail. See ROA No. 55. On June 22, 2023, the court entered a Judgment in Defendants' favor and against Plaintiff based on the Order. See ROA No.

56; Cruse Decl., Ex. C. On June 28, 2023, Defendants served Plaintiff with a Notice of Entry of Judgment electronically and via U.S. mail. See ROA No. 57.

On December 1, 2023, over five months after the Judgment was entered, Plaintiff filed and served the pending motion. See ROA No. 58. The motion, at its core, requests that the Order and Judgment be set aside because Plaintiff's counsel, due to personal issues as well as inadvertence and mistake, failed to prepare and file an opposition on Plaintiff's behalf and did not appear at the June 2, 2023 hearing on Defendants' summary judgment motion. See Castle Decl., ¶¶ 3-12. While the court certainly is sympathetic to personal issues that impact attorneys and their respective practices, such sympathy is not sufficient justification to set aside the Order and Judgment. Moreover, Plaintiff has failed to provide the court with a legal basis upon which to grant the requested relief.

More specifically, the motion makes clear that the requested relief is sought under California Code of Civil Procedure ('CCP') § 473(b)'s mandatory prong or 'attorney fault' provision. The attorney fault provision is a narrow exception to the discretionary prong and is designed to alleviate hardship to litigants who lose their day in court owing to their attorney's inexcusable failure to act. See Henderson v. Calendar No.: Event ID: TENTATIVE RULINGS

3060641 CASE NUMBER: CASE TITLE: RATKOCZY VS CURRY [IMAGED] 37-2021-00035457-CU-MM-NC Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215, 226 (quoting Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 248, 257). The attorney fault provision provides that: [T]he 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.

Cal. Code Civ. P. § 473(b). The moving party bears the burden of establishing entitlement to relief under CCP § 473(b). See Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1205.

In this case, the court finds that the requested relief is not warranted by the mandatory provision of CCP § 473(b). More specifically, and as set forth above, such relief applies only to defaults, default judgments, and dismissals – not summary judgment orders. See The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal. App. 5th 993, 1000; Henderson, 187 Cal. App. 4th at 219; Huh v. Wang (2007) 158 Cal. App. 4th 1406, 1417. Consequently, the court denies the motion to the extent Plaintiff seeks to avail herself of CCP § 473(b)'s mandatory prong.

Even if Plaintiff had sought relief under CCP § 473(b)'s discretionary prong, the requested relief still would not be warranted or otherwise appropriate for two reasons. First, the motion is procedurally deficient. CCP § 473(b) provides, in pertinent part, that '[a]pplication 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.' Cal. Code Civ. P. § 473(b) (emphasis added). In this case, Plaintiff did not submit with the motion a copy of the opposition that she proposed to file in response to Defendants' summary judgment motion. While Mr. Castle states in his declaration in support of the motion that Plaintiff will provide a copy of the proposed opposition in advance of the hearing, the statute makes clear that such opposition needed to accompany the motion (and, in any event, Plaintiff still has not submitted a copy of the proposed opposition as of the date this ruling was prepared). See Castle Decl., ¶ 15.

Second, relief under CCP § 473(b)'s discretionary prong must be predicated upon a demonstration of excusable inadvertence, mistake, surprise, or neglect. Again, while the court sympathizes with Plaintiff's counsel and the circumstances in which he found himself, failure to file an opposition to a motion for summary judgment, when service and receipt of said motion is acknowledged and when Defendants further filed and served a Notice of Non-Opposition thereby further placing Plaintiff's counsel on notice of the dispositive motion, is not the type of conduct contemplated as the basis for relief under CCP § 473(b). See Henderson, 187 Cal. App. 4th at 229 (quoting Zamora, 28 Cal. 4th at 258).

In light of the foregoing, the court denies Plaintiff's motion to set aside order for summary judgment.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 26, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 26, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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