Judge Jill Feeney, Case 21STCV21901 2022-09-12 Tentative Ruling

-Motion to Reconsider the Order Granting Defendants’ Motion for Summary Judgment filed by Plaintiff Timothy Vangel

- Motion to Set Aside the Order Granting Defendants’ Motion for Summary Judgment filed by Plaintiff Timothy Vangel

On June 10, 2021, Plaintiff Timothy Vangel (“Plaintiff”) filed his Complaint alleging causes of action for general negligence and premises liability against Defendants Southern California Edison Company, Rolling Green, Inc., Charter Communications, Inc., and Frontier Communications Corporation. This action arises out of Plaintiff being hit by a tree that had become stuck in power lines in Plaintiff’s backyard on October 18, 2020.

On January 31, 2022, Defendants Rolling Green, Inc. and Southern California Edison Company filed their Motion for Summary Judgment, or in the Alternative, Summary Adjudication. At that time, hearing on the motion was scheduled for April 15, 2022.

On April 11, 2022, Plaintiff filed its opposition to the Motion. This opposition was filed late and was not filed with any request for leave to file a late opposition. In fact, there was no acknowledgement that the filing was late. It should be noted that the opposition did not indicate that Plaintiff needed yet more time to conduct discovery or do anything else in order to respond to the motion.

The Court further notes that an application for a continuance of a motion for summary judgment must accompany the opposition papers (timely filed) or be made by an ex parte filing any time on or before the due date for the opposition. (Code of Civil Procedure Section 437c(h).)

Despite Plaintiff’s failure to request a continuance or even acknowledge Plaintiff’s late filing, on April 15, 2022, on its own motion, the Court continued the hearing date to May 31, 2022 to enable the Court to consider Plaintiff’s late-filed opposition and to enable the moving defendants to file their reply.

On April 20, 2022, Defendants Rolling Green, Inc. and Southern California Edison Company filed their reply brief in support of their motion for summary judgment.

After the Court issued its tentative decision granting the motion for summary judgment, on May 31, 2022, the date of the hearing, Plaintiff filed two additional declarations in support of Plaintiff’s opposition. These declarations addressed issues raised in the Court’s tentative ruling.

At the hearing, Plaintiff as well as two new defendant in the case (Frontier and Charter) asked for a continuance. Plaintiff wanted the Court to consider the supplemental declarations and wanted to address the impact of the appearance of the two new defendants. The two new defendants, Frontier and Charter, also wanted an opportunity to be heard with respect to the motion and therefore also wanted a continuance.

At this time, the Court might have gone forward and granted the motion. Neither Plaintiff nor Defendants Frontier and Charter had followed the appropriate procedure to request a continuance. The additional declarations filed by Plaintiff on the date of the hearing did not indicate why there were late filed. Indeed, it is clear that they were filed not based on new evidence or anything of the kind, but rather were solely designed to attempt to fill gaps identified in the tentative ruling.

Instead of deciding the motion, the Court provided the parties an opportunity to brief the issue of the legal basis to continue the motion for summary judgment to consider Plaintiff’s late-filed evidence and to consider the impact of the newly added defendants.

The Court ordered Plaintiff and Defendants Frontier and Charter to file by June 28, 2022 briefs setting forth the reasons that the summary judgment motion should be continued. Defendants Rolling Green and Southern California Edition were to file any opposition briefing on this point by July 12, 2022. At this time, the Court set a further hearing on the matter for July 18, 2022.

Neither Plaintiff nor Defendants Frontier and Charter filed the required briefing. Frontier requested to join Moving Defendants’ motion for summary judgment. The Court denied Frontier’s request.

On July 15, 2022, Plaintiff filed an ex parte application to continue the July 18, 2022 hearing. At this point, Plaintiff stated that more discovery was needed to respond to the motion for summary judgment. In the request, Plaintiff never explained the failure to raise these issues timely before its late-filed opposition to the motion for summary judgment or even as part of the late-filed opposition.

On July 18, 2022, the Court denied Plaintiff’s ex parte request for a continuance and adopted its tentative ruling as the final decision on the motion for summary judgment.

Plaintiff fails to show that there are different facts, circumstances, or law that would warrant reconsideration of the Court’s ruling. Plaintiff argues that the Court must consider Plaintiff’s unopposed evidence, the declarations of Vangel and Applegate filed on May 31, 2022. Plaintiff contends they were timely filed in opposition to the motion for summary judgment because they were filed in advance of the continued date for the hearing on the motion for summary judgment. As set forth above, the declarations were not filed timely.

With respect to Plaintiff’s request for mandatory relief under Code of Civil Procedure Section 473(b), mandatory relief under Section 473(b) applies only to defaults, default judgments and dismissals. (Shayan v. Spine Care and Orthopedic Physicians (2020) 44 Cal.App.5th 167.)