Judge: David Sotelo, Case: 19STCV41092, Date: 2022-08-03 Tentative Ruling
Case Number: 19STCV41092 Hearing Date: August 3, 2022 Dept: 40
MOVING PARTY: Plaintiff/Cross-Defendant
Domenico Frasca.
Frasca asks this Court to set aside a grant of summary adjudication
against his entire operative First Amended Complaint because at the time he was
self-represented and was under the mistaken belief that the Court would grant
him another continuance on the hearing to find legal counsel. The Court GRANTS this
Motion because Plaintiff Frasca has provided
sufficient grounds to demonstrate a mistake of fact on his part led to the Defendants’
prevailing at that hearing.
Plaintiff Domenico Frasca was hired by Defendant California Restaurant
Investments Inc. (CRI) as a server in 2011. Frasca alleges he did not experience
any problems at work until approximately late 2016, when Defendant Antonio Palmeri
found out that Plaintiff is gay. After this, Palmeri repeatedly made harassing comments
to Frasca based on his sexual orientation, including that: gay people walking in
front of CRI were “like you”; “[n]ow that Trump is President, we can expel all the
gay people out of America”; Frasca would be the “Queen of the Gay Parade” and Frasca
would be “with his ‘people’” during that week; “I will f[***] you in the a[**] raw,
without Vaseline”; and other homophobic comments. In addition, Palmeri would repeatedly
“touch Plaintiff’s buttocks” by brushing up against Frasca whenever “Palmeri passed
by Plaintiff.” Frasca, who depended on the stable wages and generous tips from a
regular base of customers at CRI, did not quit despite this abusive behavior by
Palmeri until, on January 1, 2019, Palmeri belittled Frasca in front of a regular
customer, asking whether Frasca was “a man or a woman in bed” and whether Frasca
fellated his partners as a man.
Following this incident, Frasca began seeking other employment,
which he secured on or about August 12, 2019. Shortly thereafter, Plaintiff filed
a claim with the Department of Fair Employment and Housing against CRI and Palmeri,
obtaining a right to sue letter. This action followed on November 14, 2019, with
Frasca ultimately alleging six causes of action against CRI and Palmeri in his operative
First Amended Complaint (“FAC”): (1)-(2) Discrimination, Harassment Based on Sexual
Orientation; (3) Constructive Discharge in Violation of Public Policy; (3) Failure
to Prevent Discrimination and Harassment; (5) Intentional Infliction of Emotional
Distress; and (6) Negligent Hiring, Retention, and Supervision.
On May 11, 2021, CRI and Palmeri cross-complained. The operative
First Amended Cross Complaint (“FAXC”) alleges six causes of action against Frasca:
(1) Defamation Per Se; (2) Defamation Pro Quod; (3) Intentional Interference with
Prospective Economic Relations; (4) Negligent Interference with Prospective Economic
Relations; and (5) Breach of Written Contract. The FAXC bases these claims on allegations
that Frasca made disparaging comments to customers about CRI and Palmeri (including
that Palmeri was gay and abusive toward Frasca and that CRI’s kitchen was dirty),
solicited money from clients for an outside business venture, and borrowed $8,000.00
from CRI and Palmeri only to later default on the loan for $6,500.00.
On October 1, 2021, Frasca filed a Substitution of Attorney with
the Court indicating that he had discharged his former counsel—Stephen M. Rinka—and
was now self-represented.
On November 5, 2021, CRI and Palmeri brought a Motion for Summary
Judgment or, in the Alternative, Summary Adjudication (hereafter, “summary adjudication
motion”). This motion was directed at the causes of action and punitive damages
alleged by Frasca and was set for hearing on January 20, 2022.
On December 13, 2021, Frasca made an Ex Parte Application to
continue the hearing on the summary adjudication motion on the grounds that the
upcoming holidays and lien on fees by former counsel Rinka made it difficult for
Frasca to obtain new counsel, particularly before the start of the new year. The
Court denied the Ex Parte on December 14, 2021.
Frasca ultimately failed to oppose the summary adjudication motion
by the statutorily permissible latest date of January 6, 2022.
On January 10, 2022, CRI and Palmeri filed a Notice of Non-Opposition.
On January 20, 2022, the Court heard and granted the summary
adjudication motion in favor on CRI and Palmeri because the Defendants carried their
prima facie burden on summary adjudication and Frasca failed to make a rebuttal
showing by failing to file an Opposition.
Frasca now makes this Motion for “Reconsideration” (actually,
a Motion to Set Aside or Vacate an order pursuant to Code of Civil Procedure section
473, subdivision (b)) seeking a Court Order setting aside and vacating the January
20, 2022 Order granting summary adjudication in favor of CRI and Palmeri over the
claims alleged in the FAC, on the grounds that Frasca made a mistake when he failed
to file an Opposition to the Motion for Summary Judgment or Adjudication because
Frasca was under the mistaken impression that the Court
Legal Standard: A judge has authority to consider a motion
that is labeled as a motion for reconsideration of the judge’s order granting summary
judgment, as a motion for relief from that judgment under section 473 subdivision
(b) of the Code of Civil Procedure based on excusable neglect or mistake, when the
statement of grounds for the motion clearly shows that this is the relief requested.
(Austin v. Los Angeles Unified Sch. Dist. (2016) 244 Cal.App.4th 918, 929-30
[motion filed by self-represented plaintiff made clear that plaintiff was not merely
asking judge to reconsider judge’s prior ruling but was asking judge to set aside
judgment and order granting defendant’s summary judgment motion so plaintiff could
have fair opportunity to submit opposition papers showing existence of triable issues
of fact and potential merit of her claims].)
Analysis: Plaintiff Frasca brings a putative Motion for
Reconsideration. (Mot., pp. 1:14, 2:6, 3:2, 3:22.) However, the Motion is really
one requesting that the Court set aside or vacate the January 20, 2022 summary adjudication
grant in favor of CRI and Palmeri based on Frasca’s mistake in attending the January
20 hearing without counsel and under the mistaken impression that the Court would
grant a continuance on the summary adjudication hearing based on Frasca’s lack
of adequate representation. (Mot., 2:2-9.) The Court thus considers this Motion
under 473 subdivision (b) of the Code of Civil Procedure. (Austin, supra,
244 Cal.App.4th at p. 929-30.)
Section 473 subdivision (b) of the Code of Civil Procedure provides
for both discretionary and mandatory relief from a judgment, dismissal, and/or order
or other proceeding taken against a party through his or her mistake, inadvertence,
surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b) [mandatory
relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini
v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)
The discretionary relief portion of section 473, subdivision
(b) is not limited to defaults and default-equivalent conduct, and courts have not
construed such a limitation, particularly where the only limiting language in this
statutory provision comes with respect to the narrower mandatory relief provision
of the statute. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-27.)
For example, California courts have held that the discretionary relief provisions
of section 473, subdivision (b) apply to a motion for relief from a summary judgment.
(Id. at p. 31 [attorney’s medical condition and medication for that condition,
that, unbeknownst to him, impaired his judgment and made him unable to prepare proper
opposition to the summary judgment motion, was excusable neglect under section 473,
subdivision (b)]; see also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418-19
[“Summary judgments … are not within the purview of the mandatory relief provision”
of section 473, subdivision (b) because relief is limited to “defaults, default
judgments, and dismissals,” but “[t]he discretionary relief provision of section
473, subdivision (b) applies to any ‘judgment, dismissal, order, or other proceeding’”].)
The thrust of Frasca’s argument on Motion is that he had been
looking for substitute counsel prior to January 20, 2022; did not file an Opposition
to the summary adjudication motion because he believed his time better spent looking
for counsel than learning the complexities of law and procedure; attended the January
20th hearing without counsel with the mistaken belief the Court would grant a continuance
on the hearing; was surprised when the Court did not grant him additional time to
find an attorney for the summary adjudication hearing; and now has counsel to represent
him against the summary adjudication motion. (Mot., Frasca Decl., ¶¶ 1-10.)
A mistake justifying relief from a voluntary dismissal may be
either a mistake of fact or a mistake of law. (H.D. Arnaiz, Ltd. v. County of
San Joaquin (2002) 96 Cal.App.4th 1357, 1367.) A “mistake of fact” for purposes
of mistake justifying relief from a voluntary dismissal, exists when a person understands
the facts to be other than they are. (Ibid.) A mistake sufficient to vacate
a dismissal may be found where a party, under some erroneous conviction, does an
act he would not do but for the erroneous conviction. (Id. at p. 1369.)
Here, the Court finds that Frasca was sufficiently mistaken as
to the circumstances surrounding the summary adjudication Motion and the need for
an Opposition on file on January 20, 202 as to trigger the discretionary relief
provisions of section 473, subdivision (b). The Court recognizes that on December
14, 2021 it denied an ex parte to continue the summary adjudication hearing as to
permit Frasca to obtain proper legal representation, and that on January 20, 2022,
the Court again denied a similar continuance. However, at this moment, the Court
finds Frasca’s circumstance sufficiently invoke the tenets of section 473, subdivision
(b) by highlighting the erroneous conviction that Frasca had in believing that his
time was better spent finding counsel to attend the January 20 hearing and that
a failure to obtain counsel by that date would result in a continuance.
On Opposition, CRI and Palmeri cite to Luri v. Greenwald
(2003) 107 Cal.App.4th 1119 for the position that no excusable neglect occurred
when Frasca failed to file an Opposition against the summary adjudication motion
because a “‘mistaken belief’ [Frasca] would be granted a continuance is utterly
inexcusable.” (Mot., 7:14-8:2.) CRI and Palmeri cite to no other authority in support
of their position, which is unavailing. Luri involved the denial of mandatory
relief under section 473, subdivision (b), not discretionary relief, in circumstances
where an attorney failed to file oppositions to the defendant’s motion for summary
judgment and did not attend the hearing. (Luri v. Greenwald (2003) 107 Cal.App.4th
1119, 1129.) Such circumstances differ from the circumstances here where, while
Plaintiff failed to file an Opposition, he attended the summary adjudication hearing
to obtain more time to file such an Opposition to the summary adjudication motion.
Plaintiff Frasca’s Motion is therefore GRANTED.
The Court GRANTS Plaintiff/Cross-Defendant
Domenico Frasca’s misnamed Motion for Reconsideration (Motion to Set Aside/Vacate
the Court’s January 20, 2022 Order) because Plaintiff Frasca has provided sufficient
grounds to demonstrate a mistake of fact on his part led to the Defendants’ prevailing
on summary adjudication on January 20, 2022.