Judge: H. Jay Ford, III, Case: 19SMCV00390, Date: 2023-04-25 Tentative Ruling

Case Number: 19SMCV00390    Hearing Date: April 25, 2023    Dept: O

Case Name:  City of Santa Monica v. Bills, et al.

SUBJECT:                 MOTION FOR RELIEF FROM THIS COURT’S 2-9-23 MINUTE ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION WITHOUT CONSIDERING DEFENDANT’S LATE-FILED OPPOSITION DOCUMENTS

MOVING PARTY:   Defendant WIB Holdings LLC  

RESP. PARTY:         Plaintiff City of Santa Monica

TENTATIVE RULING

Defendant WIB Holdings LLC’s Motion for Relief from This Court’s 2-9-23 Minute Order Granting Plaintiffs’ Motion for Summary Adjudication without Considering Defendant’s Late Filed Opposition Documents is DENIED.

Defendant is not entitled to mandatory relief under CCP §473(b).  The order granting summary adjudication is not a default, default judgment, dismissal or the procedural equivalent of a default or dismissal.   See Huh v. Wang (2007) 158 Cal.App.4^th 1406, 1418 (mandatory provision of CCP §473(b) “applies on to relief sought in response to defaults, default judgments or dismissals. Summary judgments thus are not within the purview of the mandatory relief provision.)  For example, English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 708C, 143 (as modified (Dec. 27, 2001) the defendant moved for summary judgment. (Ibid.) The plaintiff did not submit an opposition with any evidence. (Ibid.) Rather, the plaintiff asserted a continuance should be granted under section 437c, subdivision (h). (Id. at pp. 133-134) The trial court denied the continuance motion and subsequently granted the summary judgment motion. (Id. at p. 134.) The plaintiff filed a section 473, subdivision (b) motion under a mandatory relief theory. (Ibid.) The plaintiff's attorney declared he erred by failing to submit evidence in opposition rather than solely arguing for a continuance. (Ibid.) The trial court denied the plaintiff's motion for relief from the judgment. (Ibid.) The Court of Appeal affirmed the denial of the plaintiff's motion for relief from the judgment. Accord The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993 (The summary judgment for city based on interest group's failure to lodge the administrative record in its California Environmental Quality Act (CEQA) action against city was not a default, default judgment, or dismissal within meaning of mandatory relief from judgment section of Code of Civil Procedure; judgment was not a removal of interest group's application for relief, but instead resulted from a trial on the merits in which interest group failed to meet its burden of proof due to failure to lodge the administrative record.)

Defendant has also failed to set forth any basis for discretionary relief from the order based on “mistake, inadvertence, surprise or excusable neglect.”  CCP §473(b).  Defense counsel deliberately chose not to file an opposition based on his belief that the parties were on the brink of settlement.  See Motion, Dec. of T. Nitti, ¶2.  Defense counsel fails to provide any facts that would make this belief reasonable, nor is there any authority that would excuse Defendant from the opposition deadline based on potential settlement. 

Although Defendant failed to file an opposition, Defendant was able to file a request for continuance of the MSA on the date an opposition was due.  The decision not to prepare or file an opposition in hopes of settlement and the decision to file a request for continuance in lieu of an opposition were deliberate decisions by defense counsel.  There are no facts showing these tactical decisions were based on a reasonable mistake or excusable neglect, Defendant is not entitled to discretionary relief. 

Plaintiff’s evidence reinforces the unreasonableness and inexcusability of Defense counsel’s failure to prepare or file a timely opposition without a stipulation or order of the Court.  Plaintiff denies that the parties were ever close to settlement in January 2023.  See Dec. of G. Rhoades in Opposition to Motion for Relief, ¶3.  Plaintiff filed a declaration to the same effect on 1-26-23 in opposition to Defendant’s last-minute request for a continuance.  See Dec. of G. Rhoades in Opposition to Defendants’ Motion to Continue February 9 Hearing filed on 1-26-23, ¶3.  Plaintiff also denies ever agreeing to a continuance or suggesting that it would be agreeable to a continuance of the 2-9-23 MSA.  Id. at ¶4.