Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a legal malpractice case.  Plaintiff Michael Sapir alleges his former attorney, Ed W. Pilot failed to timely file a complaint, within the applicable statute of limitations.   

On January 3, 2024, the Court held a case management conference (“CMC”) and an OSC hearing on why sanctions should not be imposed for Plaintiff’s failure to file a proof of service.  Plaintiff did not attend the hearing, and accordingly, the Court dismissed the action without prejudice.   Plaintiff filed a motion to vacate the dismissal, which this Court granted on August 20, 2024.    

This hearing is on specially appearing Defendants Edward Pilot and Edward Pilot, PC’s motion to vacate or reconsider the Court’s August 20, 2024 order and to quash the service of the summons and complaint.  Defendants argue that Plaintiff’s motion to vacate was untimely and unsupported; no notice was given to Defendants; there was no attorney affidavit attesting to neglect; and the motion did not contain any admissible evidence supporting a claim of surprise or mistake.     

LEGAL STANDARD 

Pursuant to¿Code Civ. Proc. §¿1008(a): 

 

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. 

As stated by the court in¿Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) 

DISCUSSION 

Section 1008(a) requires that a motion for reconsideration be filed “within 10 days after service upon the party of written notice of entry of the order”.  The Court issued its Order on August 20, 2024.  However, Plaintiff failed to serve notice of the Court’s Order on Defendants. Accordingly, the 10-day “clock” has yet to run, and Defendants’ motion is, therefore, timely. 

The motion also presents different facts, circumstances or law.  Defendants had not raised the issues in its motion earlier, and there is a satisfactory explanation for Defendants’ failure to do so – Defendants were never served with the motion to vacate (which is a separate issue from whether they were entitled to be served, a question the Court addresses further below).   

Plaintiff argues that Defendants’ motion is procedurally defective because they cannot make a special appearance to seek an order to reconsider reinstating the case on its merits.  The Court agrees.  A special appearance is a limited procedural mechanism designed to challenge jurisdiction.  An appearance cannot be a special appearance when “the defendant acts in a manner showing of a purpose of obtaining any ruling or order of the court going to the merits of the case.”  (Chilcote v. Pacific Air Transport (1937) 24 Cal.App.2d 32, 35.)  Defendant cannot maintain a special appearance to seek reconsideration of an order reinstating the case.  The Court will treat Defendants as having made a general appearance by filing the present motion, which renders moot their motion seeking to quash service. 

Plaintiff also argues that Defendants do not have standing to challenge the order vacating the dismissal.  Plaintiff argues that the dismissal and decision to vacate dismissal was a matter between Plaintiff and the Court.  Plaintiff’s argument is without merit.  Defendants clearly have standing to challenge an order that reinstated an action against them.     

The Court turns now to the merits of Defendants’ motion.  Defendants argue that Code Civ. Proc. §¿473 requires that the motion to vacate shall be made “within a reasonable time, in no case exceeding six months.”  According to Defendants, even though Plaintiff filed the motion within six months, he did not do so within a “reasonable time” because he failed to explain why he waited until two days shy of the six month limit to file his motion to vacate.  The Court agrees.   

The six month period is an outside limitation, and a motion made within the six month period can still be untimely if it was not brought “within a reasonable time.”  A “moving party … must show¿diligence¿in making the motion after discovery of the default.” (Kendall v. Barker¿(1988) 197 Cal.App.3d 619, 625; see¿Benjamin v. Dalmo Mfg. Co.¿(1948) 31 Cal.2d 523, 528¿(order granting relief reversed where moving party “furnished no explanation in the trial court, either by affidavit or testimony, for its dilatory procedure”);¿Mercantile Collection Bureau v. Pinheiro¿(1948) 84 Cal.App.2d 606, 609¿(nine-week delay untimely; “nowhere in the record before us is there any showing whatever to excuse the failure … to timely file [a] motion for relief …”).) 

Here, Plaintiff was aware of the dismissal on January 3, 2024, but he has not explained why he waited until July 1, 2024 to file his motion.  He has not shown diligence in trying to bring the motion, and therefore, the motion was not brought “within a reasonable time.”  Plaintiff’s opposition still fails to explain the reason for the delay between January 3, 2024 to July 1, 2024.   

Defendants next argue that Plaintiff failed to serve them with the motion to vacate dismissal, and as a result, Plaintiff did not comply with the requirement the six month deadline which applies to both the filing and service of the motion.  The Court disagrees. 

An application for relief under¿section¿473, subdivision (b), is deemed to be made¿upon¿filing¿in court of a notice of motion and service of the notice of motion on the adverse party.  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341-342.)¿ Therefore, absent¿service¿on the adverse party, there is no “application” for relief.  “The six month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six month period.”  (Id. at 340.)   

Here, however, Defendants had not appeared, and therefore, Plaintiff was not obligated to serve them.  Code Civ. Proc. section 1010 states that no notice or paper “need be served upon any party …. who has not appeared in the action or proceeding.”  Accordingly, the failure to serve Defendants has no effect on Plaintiff’s motion to vacate dismissal. 

Notwithstanding, given the delay in bringing the motion to vacate and the failure to show diligence, the Court concludes Plaintiff’s motion to vacate was not made within a reasonable time, and the Court should, accordingly, have not granted the motion.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendants’ motion to vacate and reconsider the order of dismissal.  The Court reinstates its prior order dismissing the action without prejudice.   

 

IT IS SO ORDERED. 

 

DATED: October 15, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court