Judge: Frank M. Tavelman, Case: BC710866, Date: 2022-10-28 Tentative Ruling

Case Number: BC710866    Hearing Date: October 28, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO VACATE VOID JUDGMENT (CCP §473(D) AND

MOTION IN EQUITY TO SET ASIDE JUDGMENT OR

ORDER PRECURED BY EXTRINSIC MISTAKE

ALLEGATIONS:

Juan Castro and Graciela Castro (“Plaintiffs”) filed suit against Kevin Suk, M.D., Tom S. Chang M.D., Inc. dba Retina Institute of California, Michael Samuel M.D., Inc. dba Retina Institute of California (collectively, “Retina Institute Defendants”), as well as San Gabriel Ambulatory Surgery Center, L.P. (“Defendant SGASC”) (collectively, “Defendants”), alleging Defendants negligently operated on Plaintiff Juan Castro’s left eye which resulted in a bacterial infection, and subsequent removal of the eye.

Plaintiffs filed a Complaint on June 18, 2018, alleging four (4) causes of action: (1) Medical Negligence; (2) Res Ipsa Loquitur Negligence; (3) Lack of Informed Consent; and (4) Loss of Consortium.

HISTORY:

On April 22, 2020, Defendant SGASC filed a Motion for Summary Judgment, requesting an Order granting summary judgment, or alternatively, summary adjudication, of Plaintiffs’ first through fourth causes of action.  On August 25, 2020, the Court granted Defendant SGASC’s Motion for Summary Adjudication as to Plaintiffs’ third cause of action only.

On July 27, 2021, Retina Institute Defendants filed a Motion for Summary Judgment, requesting an Order granting summary judgment, or alternatively, summary adjudication, of Plaintiffs’ first through fourth causes of action.  Subsequently, on August 31, 2021, Defendant SGASC filed a Motion for Summary Judgment, requesting an Order granting summary judgment, or alternatively, summary adjudication of Plaintiffs’ first, second, and fourth causes of action.  The Court did not receive any Opposition to either Motion from Plaintiffs.

On December 17, 2021, the Court granted Retina Institutes Defendants’ Motion for Summary Judgment entirely, as to Plaintiffs’ first through fourth causes of action.  Thereafter, on December 17, 2021, the Court entered judgment upon Plaintiffs’ Complaint in favor of Retina Institute Defendants, and against Plaintiffs.

Additionally on December 17, 2021, the Court granted Defendant SGASC’s Motion for Summary Judgment as to Plaintiffs’ first, second, and fourth causes of action.  Having granted summary adjudication as to the sum of Plaintiffs’ causes of action against Defendant SGASC, the Court entered judgment in favor of Defendant SGASC and against Plaintiffs on December 27, 2021.

The Court received Plaintiff Graciela Castro’s Motion to Vacate Void Judgment (CCP § 473(d)), and Motion in Equity to Set Aside Judgment or Order Procured by Extrinsic Mistake on October 6, 2022.  The Court received Defendant SGASC’s opposition to Graciela Castro’s Motion on October 13, 2022.  The Court received Retina Institute Defendants’ opposition to Graciela Castro’s Motion on October 17, 2022.  The Court has not received a reply from Plaintiff Graciela Castro as of October 24, 2022.

RELIEF REQUESTED:

Plaintiff Graciela Castro moves for an Order vacating the judgment entered by this Court on December 17, 2021, which effectively entered judgment upon Plaintiffs’ Complaint in favor of Retina Institute Defendants, and against Plaintiffs. 

Plaintiff Graciela Castro additionally moves for an Order vacating the judgment entered by this Court on December 27, 2021, which effectively entered judgment upon Plaintiffs’ Complaint in favor of Defendant SGASC and against Plaintiffs.

ANALYSIS:

I.          LEGAL STANDARD

            A.         Legal Standard—Code of Civil Procedure Section 473, Subdivision (d)

Code of Civil Procedure section 473, subdivision (d) provides this Court with the authority,  upon motion by a party or upon the Court’s own motion, to set aside any void order.  (Code Civ. Proc., § 473, subd. (d) [“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”].)  Only “void” orders may be set aside under Code of Civil Procedure section 473, subdivision (d), as opposed to voidable orders.  (Ibid.; People v. North River Insurance Co. (2020) 48 Cal.App.5th 226, 234 [“Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgment and orders may not.”].) 

“A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the “entire absence of power to hear or determine the case” resulting from the “absence of authority over the subject matter or the parties.” [Citations.]”  (North River Insurance Co., supra, 48 Cal.App.5th at p. 233.)  In contrast, a judgment will merely be “voidable” where the court “merely act[s] in excess of its jurisdiction or defined power” by, for example, rendering “ ‘ “certain kinds of relief, or . . . act[ing] without the occurrence of certain procedural prerequisites” ’ . . . .  [Citation.]”  (Ibid.) 

            B.         Legal Standard—Equitable Power to Vacate Final Judgment

Code of Civil Procedure section 473, subdivision (b) provides, a court may relieve a party or their legal representative from a judgment taken against them through their mistake, inadvertence, surprise, or excusable neglect, only where the application for relief is made within six (6) months from the date of entry of judgment.  (Code Civ. Proc., § 473, subd. (b).)  However, where the six (6) month time period has lapsed, a court may still vacate a final judgment on equitable grounds.  (Olivera v. Grace (1942) 19 Cal.2d 570, 575; In re Marriage of Park (1980) 27 Cal.3d 337, 342.) 

The court’s equitable jurisdiction to vacate or set aside a final judgment is exercised where “extrinsic factors,” such as “extrinsic fraud” or “extrinsic mistake,” prevented a party from “from presenting [their] case to the court” and has stripped a party from the provision of “a fair, adversary trial . . . in the action.”  (Olivera, supra,  19 Cal.2d at p. 575; In re Marriage of Park, supra, 27 Cal.3d at p. 342 [“A final judgment may be set aside by a court if it is established that extrinsic factors prevented one party to the litigation from presenting their case. [Citation.] The grounds for such equitable relief are commonly stated as being extrinsic fraud or mistake.”]; In re Marriage of Damico (1994) 7 Cal.4th 126, 688 (conc. opn. of J. Kennard) [“After the time for ordinary direct attack has passed (see Code Civ. Proc., § 473 [allowing up to six months to challenge a judgment entered through the moving party’s mistake, inadvertence, surprise, or excusable neglect]), a party may obtain relief from an erroneous judgment by establishing that it was entered through extrinsic fraud or mistake.”].) 

“To warrant relief on [equitable] ground[s], the moving party must establish: (1) facts constituting extrinsic fraud or mistake; (2) a substantial defense on the merits; and (3) diligence in seeking relief from the adverse judgment.”  (In re Marriage of Damico, supra, 7 Cal.4th at p. 688 (conc. opn. of J. Kennard); Warga v. Cooper (1996) 44 Cal.App.4th 371, 376.) 

II.        MERITS

Graciela Castro (hereinafter, “Plaintiff”) moves for an Order setting aside the following judgments entered by this Court on December 17, 2021 and December 27, 2021, respectively, following the Court’s consideration of Retina Institute Defendants’ Motion for Summary Judgment and Defendant SGASC—Judgment upon Plaintiffs’ Complaint in favor of Retina Institute Defendants; and Judgment upon Plaintiffs’ Complaint entered in favor of Defendant SGASC  (collectively, “Judgments”).

Plaintiff moves for an Order setting aside the above-identified Judgments on two grounds.  First, Plaintiff maintains the Court’s Judgments are void and, therefore, may properly be set aside pursuant to Code of Civil Procedure section 473, subdivision (d).  (Code Civ. Proc., § 473, subd. (d) [“The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.”].)  Second, Plaintiff contends the Court’s Judgments were entered due to “extrinsic mistake” and, thus, may be vacated in accordance with the Court’s equitable jurisdiction.  The Court considers Plaintiff’s arguments respectively, below.

            A.         Merits—Code of Civil Procedure Section 473, Subdivision (d)

Initially, Plaintiff moves to set aside the above-identified Judgments on the ground the Judgments are “void,” pursuant to Code of Civil Procedure section 473, subdivision (d).    Plaintiff argues the Judgments are “void” because they were entered against a deceased person—Plaintiff Juan Castro (hereinafter, “Decedent”).  Plaintiff contends Decedent passed away eight (8) months prior to the entry of the aforementioned Judgments, and the Court was not permitted to enter judgment against Decedent until a personal representative had been substituted into the action for Decedent.  Plaintiff contends no such personal representative had been substituted into this action for Decedent prior to the Court’s entry of the Judgments.

In the interest of clarity, the Court briefly reiterates the applicable law.  Only “void” orders may be set aside under Code of Civil Procedure section 473, subdivision (d), as opposed to voidable orders.  (North River Insurance Co., supra,  48 Cal.App.5th at p. 234 [“Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgment and orders may not.”].)  “A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘entire absence of power to hear or determine the case’ resulting from the ‘absence of authority over the subject matter or the parties.’  [Citations.]”  (Id. at p. 233.)  Contrarily, a judgment will merely be “voidable” where the court “merely act[s] in excess of its jurisdiction or defined power” by, for example, rendering “ ‘ “certain kinds of relief, or . . . act[ing] without the occurrence of certain procedural prerequisites” ’ . . . .  [Citation.]”  (Ibid.)

The Court observes that Plaintiff is largely correct in stating, the death of a party prior to the entry of judgment, generally, renders the entry of judgment against the deceased party improper “ ‘without first taking the procedural step of substituting the executor or administrator’ ” into the action.  (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1007; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957 [“As a general proposition, it is true, as Sacks contends, that under these provisions judgment cannot be rendered for or against a decedent, nor for or against a personal representative of a decedent’s estate until the representative has been made a party by substitution.”].)  However, various California courts have unanimously held that a court’s entry of judgment against a decedent “ ‘does not render the judgment void[,]’ ” but merely “voidable”.  (Grappo, supra, 11 Cal.App.5th at p. 1008; Hogan v. Superior Court of California in and for City and County of San Francisco (1925) 74 Cal.App. 704, 710-711 [“ ‘If an action is begun

by and against living parties, over whom the court obtains jurisdiction, and some of them subsequently die, it is not thereby deprived of its jurisdiction; and, while it ought not to proceed to judgment without making the representative or successor in interest of the deceased parties to the action, yet, if it does so proceed, its action is irregular merely, and its judgment is not void collaterally, particularly where the fact of death is not shown by the record.’ ”]; Todhunter v. Klemmer (1901) 134 Cal. 60, 63 [holding, death of a party pending suit does not oust the jurisdiction of the court, and hence the judgment is not void, but voidable], Collison v. Thomas (1961).  Succinctly, judgment against a decedent, prior to the substitution of his or her successor in interest or personal representative, is merely “voidable” because such a judgment results merely from the Court’s failure to “ ‘act without the occurrence of certain procedural prerequisites’ ” as opposed to the Court’s lack of jurisdiction over a decedent or the subject matter of the action.  (North River Insurance Co., supra, 48 Cal.App.5th at p. 233.)

Pursuant to the foregoing applicable law, the Court concludes, while Plaintiff is correct in observing the Judgments were entered against Decedent without prior substitution of his personal representative, such a procedural error does not render the Judgment “void,” but merely “voidable.  Accordingly, Plaintiff is not entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (d).  (Code Civ. Proc., § 473, subd. (d).)

            B.         Merits—Equitable Power to Vacate Final Judgment

Plaintiff additionally moves to set aside the Court’s Judgments on equitable grounds, arguing the Judgments were entered due to “extrinsic mistake.”  Specifically, Plaintiff argues she was prevented from timely filing an opposition in response to Defendants’ Motions for Summary Judgment because Plaintiff’s counsel of record was unsure “how to handle disclosure of [Plaintiff Juan] Castro’s death” and “was unsure on how [to] . . . continue representing [Plaintiff] Juan Castro’s interest now that he had passed.”  (Mojarro Decl., ¶ 12.)  Plaintiff’s counsel essentially declares he did not have sufficient time to ascertain the law with respect to representing a deceased Plaintiff (Decedent) and a living Plaintiff (Plaintiff) concurrently, as he only learned of Decedent’s death during the time in which he “was prepping the opposition to the MSJ pleadings”.  (Id., ¶¶ 12-13.)  Plaintiff’s counsel eventually filed oppositions on Plaintiff’s and Decedent’s behalf on December 16, 2021, only one day before the scheduled hearing date, which was not considered by the Court.

As discussed above, to warrant equitable relief setting aside a final judgment, Plaintiff is required to proffer evidence demonstrating the following elements: (1) facts constituting extrinsic fraud or mistake; (2) a substantial defense on the merits; and (3) diligence in seeking relief from the adverse judgment.  (Warga, supra, 44 Cal.App.4th at p. 376.)  “Extrinsic mistake is ‘a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.]’ ”  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)  However, relief is denied when a party was given notice of an action and has not been prevented from participating therein. Parage v. Couedel (1997) 60 Cal. App. 4th 1037 (citing Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472, vacated by statute on other grounds.)  Additionally, while it is true that “positive misconduct” of an attorney may serve as a basis for a finding of “extrinsic mistake, neither a mistake of the law nor ignorance of the law is sufficient to support a finding of “extrinsic mistake”.  (Janetsky v. Avis (1986) 176 Cal.App.3d 799, 811; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148-1149; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 739.)

The Court concludes Plaintiff has not met the requirements for equitable relief to set aside the Judgments.  Plaintiff failed to satisfy the three elements enumerated in the preceding paragraph. 

First, the Court is unpersuaded that the Judgments were entered against Plaintiff as a result of “extrinsic mistake.”  Initially, the Court opines that Plaintiff was not “prevented” from proffering a timely defense to Defendants’ Motions for Summary Judgment.  Rather, following review of the submitted evidence, it appears Plaintiff’s inability to timely oppose Defendants’ Motions for Summary Judgment is attributable to Plaintiff’s own lack of diligence in notifying her counsel of Decedent’s death.  The Court opines, as Decedent’s surviving spouse, Plaintiff would have been apprised of Decedent’s death as soon as April 5, 2021 (the date of Decedent’s death).  (Mojarro Decl., ¶ 1, Ex. A.)  However, Plaintiff did not notify Plaintiff’s counsel of Decedent’s death until Plaintiff’s counsel’s preparation of the Opposition to Defendants’ Motions for Summary Judgment, months later.  (Id., ¶ 13.)  In the event Plaintiff acted diligently, informing Plaintiff’s counsel of Decedent’s death in April of 2021, Plaintiff’s counsel would have been provided with nearly seven months to conduct legal research and timely file an opposition.  Ultimately, Plaintiff has failed to submit a declaration sufficiently demonstrating that the failure to timely oppose Defendants’ Motions for Summary Judgment was not the result of her own lack of diligence.  Further, even where Plaintiff demonstrates she provided Plaintiff’s counsel with ample notice of Decedent’s death, Plaintiff’s counsel’s mistake or ignorance of the law is insufficient to support a finding of extrinsic fraud or mistake.  Therefore, while Plaintiff’s counsel attests his failure to file a timely opposition was due to his lack of legal knowledge as to “how [he] would be able to continue representing [Decedent’s] interests” in the litigation, such ignorance of the law is inadequate to demonstrate extrinsic mistake.  

Second, even where Plaintiff sufficiently demonstrates the Court’s Judgments were each entered due to extrinsic mistake, Plaintiff’s Motion fails to discuss whether or not Plaintiff has a “substantial defense on the merits” with respect to Defendants’ Motions for Summary Judgment.  Indeed, Plaintiff’s Motion is entirely devoid of any substantive discussion as to the grounds for Plaintiff’s opposition to Defendants’ Motions for Summary Judgment, and whether such arguments are meritorious.

Third, the Court is not inclined to find Plaintiff exercised reasonable diligence in seeking relief following the entry of the above-identified Judgments.  As noted above, the Court’s Judgments were entered on December 17, 2021 and December 27, 2021, and Plaintiff did not file the present Motion requesting relief until October 6, 2022, nearly ten months subsequent to the entry of the Judgments.

Based on the foregoing, the Court concludes Plaintiff has failed to sufficiently proffer evidence which would warrant the equitable relief requested.

III.       CONCLUSION

Plaintiff Graciela Castro’s Motion to Vacate Void Judgment (CCP § 473(d)), and Motion in Equity to Set Aside Judgment or Order Procured by Extrinsic Mistake is DENIED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Graciela Castro’s Motion came on regularly for hearing on October 28, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

IT IS SO ORDERED.

DATE: October 28, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles