Judge: Gregory Keosian, Case: 21STCV42453, Date: 2024-03-12 Tentative Ruling

Case Number: 21STCV42453    Hearing Date: March 12, 2024    Dept: 61

Plaintiff Susan C. Morinaga’s Motion to Vacate Order Granting Summary Judgment is DENIED.

Defendants to provide notice.

Code of Civil Procedure section 473, subdivision (b) states:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application 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 . . . . Notwithstanding any other requirements of this section, the 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 . . . 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.

“A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney's negligence is imputed to the client. Inexcusable neglect of an attorney is usually not a proper basis for granting the client's motion under section 473. Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419, internal citations and quotation marks omitted.)

Plaintiff Susan C. Morinaga, trustee of the SCM Trust dated July 23, 2010 (Plaintiff) seeks relief from this court’s order of May 16, 2023, granting Defendants City of Torrance and Torrance School District’s Motion for Summary Judgment, and the order entering judgment on June 2, 2023.

Plaintiff presents her declaration, and that of her former counsel, Stanley Denis, stating the following facts. Defendants’ motion was granted based on Plaintiff’s deficient discovery responses. Plaintiff received the discovery at issue on May 2, 2022. (Morinaga Decl. ¶ 12.) These responses were served by her counsel on July 22, 2023, because Plaintiff, after multiple discovery extensions, had not supplied responses of her own by the deadline. (Denis Decl. ¶ 5.) Plaintiff received notice of her counsel’s motion to be relieved as counsel on July 19, 2022, and had notice that her counsel would not be available from July 18 to August 5, 2022. (Denis Decl. ¶¶ 11–12.) Plaintiff emailed her discovery responses to her counsel on July 26, 2022, during this period of unavailability (Denis Decl. ¶ 13.) This discovery was evidently never served upon Defendants, despite an inquiry by Plaintiff on September 7, 2022, to which she received no response from counsel except to note that the date of the hearing on the motion to be relieved had been continued to September 29, 2022. (Morinaga Decl. ¶ 14.)

Denis’ motion to be relieved as counsel was granted on September 29, 2023, and Plaintiff received notice of the ruling. (Morinaga Decl. ¶ 15.) Plaintiff does not indicate that she took any action to find other counsel from the date of receiving notice of Denis’ motion on July 19, 2022, until November 11, 2022, after receiving an email from Denis providing referrals to three other attorneys. (Morinaga Decl. ¶ 16.) Plaintiff claims to have corresponded with one of these attorneys, David Piper, until April 2023, but began looking for other counsel after Piper failed to return her calls for “several weeks.” (Morinaga Decl. ¶ 16.)

On December 26, 2022, Plaintiff contracted COVID-19. (Morinaga Decl. ¶ 17.) Plaintiff was 70 years old at the time, and her recovery was slow, going “well into February 2023 and beyond.” (Morinaga Decl. ¶ 17.) Plaintiff claims that she was experiencing “continuing COVID-related health issues, including, without limitation, breathing problems, low energy, and eventually some memory loss,” which “lingered into April 2023.” (Morinaga Decl ¶ 17.)

Defendants’ motion for summary judgment was served by mail on January 19, 2023, and Plaintiff claims to have received it in February. (Morinaga Decl. ¶ 17.) Plaintiff claims, “During this time period, I did not understand how to respond to the motion for summary judgment without the assistance of an attorney.” (Morinaga Decl. ¶ 17.) Plaintiff made two inquiries to Piper for assistance with the MSJ, one on February 16, 2023, and another in April 2023, both to no response.(Morinaga Decl. ¶ 17.) Plaintiff states that she learned for the first time that Denis had not served her discovery responses when she received the motion for summary judgment. (Morinaga Decl. ¶ 18.)

Plaintiff engaged an attorney on May 10, 2023, to specially appear for her at the hearing on the summary judgment motion, in the hopes that she would serve the unserved discovery, respond to the summary judgment motion, and would make a case for continuing the motion based on the above-stated facts. (Morinaga Decl. ¶ 19.) During the hearing, Plaintiff’s counsel sought a dismissal without prejudice to allow a hearing on the merits, and to allow Plaintiff to serve discovery. (Yoshiba Decl. Exh. G.) Defendants in opposition present evidence that this counsel earlier sought a stipulation to continue the hearing on the motion, without success. (Yoshiba Decl. ¶ 12.)

Since the entry of judgment against Plaintiff on June 2, 2023, Plaintiff states she has consulted with several potential attorneys, including several consultations with one Jason Stone from June 8 to October 20, 2023. (Morinaga Decl. ¶¶ 24–25.) Stone informed Plaintiff that he would not assist her with any motion to obtain relief from the motion after obtaining a declaration from Denis and a $977.50 retainer fee from Plaintiff. (Morinaga Decl. ¶ 25.) Plaintiff retained present counsel in November 2023. (Morinaga Decl. ¶ 26.)

Plaintiff’s evidence discloses that she is not eligible for relief, because the judgment obtained against her is the result of inexcusable neglect and a consistent pattern of dilatory response to the litigation. It was Plaintiff’s failure to provide timely discovery responses that caused the provision of the defective discovery at issue in Defendants’ dispositive motion. Plaintiff served different responses only after receiving Denis’ motion to be relieved, and at a time she knew he was unavailable. After receiving the notice of the motion to be relieved on July 19, 2022, she took no action to obtain new counsel until November 1, 2023. Plaintiff’s efforts to obtain further counsel after this point were evidently minimal. Given this pattern of delay, Plaintiff’s vague description of the magnitude and duration of her COVID symptoms is insufficient basis to conclude that her illness had more than a partial and temporary effect on her ability to comply with her litigation obligations. Indeed, as Defendants point out, Plaintiff was able to serve new discovery queries April 10, 2023, while the motion for summary judgment was pending. (Yoshiba Decl. ¶ 8, Exh. D.) During this time Plaintiff did not serve the discovery that she had previously given to Denis. The evidence thus suggests that Plaintiff’s illness did not prevent her from responding to the motion for summary judgment.

Plaintiff in reply cites the case Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 21, for the proposition that a cognitive impairment may form the basis for a finding of excusable neglect. (Reply at p. 3.) That case involved an attorney whose opposition to a motion for summary judgment that the trial court thought “was so poorly written that it wondered if something was seriously amiss.” (Minick, supra, 3 Cal.App.5^th at p. 23.) At the hearing on the motion, the attorney “showed signs of physical distress during argument and was taken to a hospital by ambulance.” (Id. at p. 19.) After the motion for summary judgment was granted, the attorney submitted the following evidence:

Watson explained that he had been suffering from serious pulmonary and sleep disorders throughout 2013, and that his symptoms gradually worsened as the year progressed. He sought medical treatment and was put on a regimen of 12 different medications. In the course of treatment, he went to the emergency room four times, twice by ambulance; he consulted with five medical specialists in dozens of appointments; and he underwent radiological studies, lab studies, ultrasound studies, and sleep studies. Although Watson's underlying pulmonary condition gradually improved, he claimed to have suffered side effects from the medications, including painful spasms, episodes of disorientation, and periods of uncharacteristically strong responses to stressors.

From August through December 2013—a time period coinciding with his efforts to prepare summary judgment opposition papers for Minick—Watson reported that the combination of symptoms from illness and the side-effects from his medications were at their peak. Although at the time he felt he was adequately “soldiering on” despite the medical crisis he was in, Watson declared that, looking back on that period of time, he could see that his judgment was clouded, his thought processes were not as clear and dispassionately critical as was normal for him, and he suffered from gaps in his memory. Watson explained that he was an experienced trial lawyer, and to that point had a record of considerable success in law practice, but that in 2013, as a result of his medical condition, his ability to perform as a lawyer fell, and he made decisions in this case “that were not in keeping with [his] ordinary practice of law.”

(Id. at p. 20.) The moving party in Minick thus offered credible and specific evidence of cognitive impairment, its causes, and its relation to the preparation of the opposition to a dispositive motion. Plaintiff’s evidence on this point is framed in generalities, and is framed by a pattern of delay not associated with any illness. The present case is distinguishable from Minick because Plaintiff’s illness had no evident impact on her ability to respond to the motion for summary judgment.  

Plaintiff claims that Denis “abandoned” her, and that his conduct amounts to “positive misconduct” justifying relief. (Motion at pp. 10–11, quoting Daley v. Butte County (1964) 227 Cal.App.2d 380, 392.) No such misconduct occurred. The failure to serve discovery responses that Plaintiff unreasonably delayed and served at a time when counsel was unavailable does not amount to positive misconduct. (See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 900 [“Though counsel grossly mishandled a routine discovery matter, no abandonment of the client appears.”].) Plaintiff in reply argues that the counsel who specially appeared for her at the summary judgment hearing also abandoned her by failing to raise her illness and the existence of valid discovery responses. (Reply at pp. 3–4.) Once more, no positive misconduct occurred: this attorney sought a denial of the motion without prejudice to allow a continuance, indicated Plaintiff’s ability to serve compliant discovery responses, and stated — truthfully, as confirmed by Plaintiff’s declaration — that Plaintiff “did not do what she was supposed to do” in failing to serve valid discovery responses. (Yoshiba Decl. Exh. G.) Plaintiff was never abandoned by counsel.

The motion is therefore DENIED.