Judge Joel R Wohlfeil, Case 37-2019-00063383-CU-PO-CTL 2024-01-19 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2019-00063383-CU-PO-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 18, 2024

01/19/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2019-00063383-CU-PO-CTL SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 11/06/2023

1. The Motion (ROA # 168) of Plaintiff ROBERTO SOLIS RODRIGUEZ ('Plaintiff') reconsider its order of terminating sanctions and dismissal ruling from October 25, 2023 in favor of Defendants WNT, INC. d / b / a PLAZA HOTEL ('WNT') and LESTER WHITE ('WHITE') (collectively 'Defendants') and against Plaintiff, is GRANTED IN PART and DENIED IN PART.

Once judgment has been entered, the Court loses jurisdiction to reconsider its prior ruling. APRI Ins.

Co. v. Superior Court (1999) 76 Cal. App. 4th 176, 181.

This is true even if the Motion to reconsider was filed before entry of judgment. Id. Instead, the Court may correct judicial error only through certain limited procedures such as a motion for new trial or a motion to vacate the judgment. Id. In this case, the judgment of dismissal was entered on November 27, 2023. As a result, this Court lacks the jurisdiction to entertain a motion for reconsideration of the October 25, 2023 order of dismissal, and this aspect of the Motion is denied. Although the opposition does not raise this issue, the Court nonetheless addresses it because it is jurisdictional.

The alternative Motion for relief pursuant to Code of Civil Procedure section 473(b) appears to also be directed at the October 25, 2023 order of dismissal. As this order was subsequently converted into a judgment of dismissal, the Court will treat this part of the Motion as seeking section 473(b) relief by setting aside the judgment of dismissal.

The October 25, 2023 order of dismissal and the subsequent entry of judgment were based on Plaintiff's failure to serve responses, without objections, within the 60 day period set forth within the August 25, 2023 order. Instead, the responses Plaintiff served contained objections.

3048285 18 CASE NUMBER: CASE TITLE: SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] 37-2019-00063383-CU-PO-CTL 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, or (2) resulting default judgment or dismissal entered against his or her client, 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....' Code Civ. Proc. 473(b).

The declaration of Plaintiff's counsel states as follows: '14. My office mistakenly served the discovery with objections because I mistakenly believed that the discovery order from the October 10, 2023 hearing was a new order and that Plaintiff was to simply provide discovery responses and apply objections as Plaintiff's counsel would normally do in good faith.

15. Unbeknownst to myself, this honorable court desired for me to follow the previous discovery order from the May 12, 2023 hearing which stated that Plaintiff's counsel was to serve the discovery with no objections.

16. I have attached a copy of my doctor's note here for this honorable Court's review and consideration (see a true and correct copy of a Doctor's Note of Illness for Plaintiff's counsel as Exhibit D).

16. My office has since corrected this mistake and we served objection-free responses to discovery on October 26, 2023 (see true and correct copies of the discovery served with proof of service as Exhibit E).

16. Plaintiff should not be prejudiced here for this mistake.

17. I apologize for this mistake and have placed in safeguards to ensure that this mistake does not happen again.

18. Providing objections within the discovery responses was not the fault of Plaintiff, but my fault. I take full responsibility for this mistake. This mistake was not made in bad faith.

'Where an 'attorney affidavit of fault' is filed, there is no requirement that the attorney's mistake, inadvertence, etc. be excusable. Relief must be granted even where the default resulted from inexcusable neglect by defendant's attorney.' Edmon and Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 5:295 (citing Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal. App. 4th 868, 897 (disapproved on other grounds in Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830).

This Motion is made within six months of the judgment of dismissal and is accompanied by an attorney declaration of fault. Even though it is surprising that counsel could have interpreted the Court's orders in this way, whether the mistake is excusable is not a factor. Therefore, the October 25, 2023 order of dismissal and the subsequent judgment of dismissal are set aside on this basis. However, this ruling does not affect or set aside the May 12, 2023 order (compelling responses and the payment of sanctions) or the August 25, 2023 order (Motion for terminating sanctions).

The Court may relieve a party from a judgment taken through mistake, 'upon any terms as may be just.' Vanderkous v. Conley (2010) 188 Cal. App. 4th 111, 118 (citing § 473 (b)).

Such terms frequently condition relief obtained under section 473 on the payment of an adversary's fees and costs. Id. Calendar No.: Event ID: TENTATIVE RULINGS

3048285 18 CASE NUMBER: CASE TITLE: SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] 37-2019-00063383-CU-PO-CTL 'Here, when the court granted Vanderkous relief from the judgment, it required he pay Conley's fees.

The order was permissible under section 473.' Id. at 119.

Defendants seek to recover the attorney fees incurred opposing this Motion. This is a reasonable request, and the fee award is supported by the declaration of defense counsel. A reply disputing the requested award has not been filed. Attorney fees are awarded in the amount of $2,762.50. The requested amount was reduced slightly because time will not be needed to review the non-existent reply brief. This award is made in addition to the sanctions awards previously issued by the Court.

_____ 2. The Motion (ROA # 171) of Plaintiff ROBERTO SOLIS RODRIGUEZ ('Plaintiff') for an order for discretionary and mandatory relief from the Court's order on May 12, 2023, is DENIED.

This Motion for relief pursuant to Code of Civil Procedure section 473(b) is directed at the May 12, 2023 order deeming Requests for Admission admitted, ordering Plaintiff to provide responses (without objections) to Form Interrogatories, Special Interrogatories and Request for Production of Documents, and ordering the payment of monetary sanctions.

'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, or (2) resulting default judgment or dismissal entered against his or her client, 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....' Code Civ. Proc. 473(b).

This Motion was filed within the six month deadline of the May 12, 2023 order because November 12, 2023 was a Sunday.

This Motion attempts to invoke the mandatory relief provision of section 473(b) based on an attorney declaration of fault. However, for purposes of the mandatory provision of section 473(b), a 'default' means only Defendant's failure to answer a complaint, and a 'default judgment' means only a judgment entered after Defendant has failed to answer and the defendant's default has been entered.

Vandermoon v. Sanwong (2006) 142 Cal. App. 4th 315, 321. It does not apply to discovery orders such as the May 12th order at issue on this Motion.

In addition, '[r]elief under section 473 is unavailable when the discovery act provides analogous, if more limited, relief.' Zellerino v. Brown (1991) 235 Cal. App. 3d 1097, 1107.

Code of Civil Procedure section 2033.300 governs relief from an order deeming request for admissions admitted. Therefore, this Motion lacks merit with respect to the order deeming the admissions admitted.

With respect to discretionary relief for the remainder of this Court's May 12th order, a party who seeks Calendar No.: Event ID: TENTATIVE RULINGS

3048285 18 CASE NUMBER: CASE TITLE: SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] 37-2019-00063383-CU-PO-CTL relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to their client and may not be offered by the latter as a basis for relief. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.

In determining whether the attorney's mistake or inadvertence was excusable, the Court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. Id. In other words, the discretionary relief provision of section 473 only permits relief from attorney error fairly imputable to the client, i.e., mistakes anyone could have made. Id. Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. Id. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice. Id. The declaration of counsel states that counsel lost contact with Plaintiff until September 27, 2023. After this time, Plaintiff began working with counsel to prepare the past-due discovery responses. Counsel has 'remedied the discovery issues and sent out fully verified discovery responses without objections.' The declaration of counsel does not explain why counsel never informed defense counsel or this Court of the inability to communicate with the client. Counsel does not explain why counsel did not at least serve incomplete responses in order to preserve objections. Importantly, counsel does not explain why counsel did not file any opposition to the Motion to compel, or appear at the May 12th hearing. Finally, there is no declaration from Plaintiff explaining the reasons why Plaintiff did not maintain contact with counsel, provide counsel with updated contact information, and/or initially work with counsel to litigate this action.

Given this incomplete record, the Court is unable to conclude that the failure to serve timely responses to discovery resulted from Plaintiff's mistake, inadvertence, surprise or excusable neglect. The Motion is denied on this basis.

The memorandum filed in support of this Motion requests the alternative relief of reconsideration of the May 12th order pursuant to Code of Civil Procedure Section 1008. However, this is not relief that is set forth within the Notice of Motion. As a result, this aspect of the Motion cannot be addressed by the Court. Even if this relief was set forth in the Notice, new circumstances or facts that could not have been discovered earlier are not provided. Counsel knew he could not locate his client when this Motion was originally heard on May 12th.

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