Judge Joel R Wohlfeil, Case 37-2021-00000121-CU-PO-CTL 2024-01-19 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2021-00000121-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) 37-2021-00000121-CU-PO-CTL HILDEBRAND VS OVERTURE SAN MARCOS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 11/09/2023

1. The Motion (ROA # 107) of Plaintiff NANCY HILDEBRAND ('Plaintiff') for discretionary and mandatory relief, pursuant to Code of Civil Procedure section 473(b), is DENIED.

'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).

Plaintiff seeks 'relief' from this Court's May 12, 2023 order deeming requests for admission admitted, ordering Plaintiff to provide responses (without objections) to Form Interrogatories, Special Interrogatories and Requests for Production of Documents, and ordering the payment of monetary sanctions.

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 a defendant's failure to answer a complaint, and a 'default judgment' means only a judgment entered after Defendant has failed to answer and Defendant's default has been entered.

Vandermoon v. Sanwong (2006) 142 Cal. App. 4th 315, 321. It does not apply to discovery orders.

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 Calendar No.: Event ID: TENTATIVE RULINGS

3050933 CASE NUMBER: CASE TITLE: HILDEBRAND VS OVERTURE SAN MARCOS [IMAGED] 37-2021-00000121-CU-PO-CTL admitted. Therefore, this Motion lacks merit with respect to the order deeming the admissions admitted.

With respect to discretionary relief for the remainder of the Court's May 12th order, this Motion was filed within six months of the subject order. A party who seeks 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 November 5, 2023, and that since this time Plaintiff has been working with counsel to prepare the past-due discovery responses.

During part of this time period, Plaintiff was hospitalized, and suffered from 'numerous health issues.' Although a one month delay during the hospitalization would constitute excusable neglect, this does not explain the remaining several months. The declaration of counsel does not explain why counsel never previously informed defense counsel or the 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. Counsel does not explain why counsel did not file any opposition to the Motion to compel, or appear at the May 12th hearing. Counsel also does not explain why the Court ordered responses have still not been served, even though over two months have elapsed since counsel reestablished contact.

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 proactively 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.

_____ 2. The Motion (ROA # 99, 115) of Defendants GS AA SAN MARCOS OWNER, LLC, GREYSTAR CALIFORNIA, INC. and SHERI BLEAU ('Defendants') for issue and evidence sanctions against Plaintiff NANCY HILDEBRAND ('Plaintiff'), and for monetary sanctions against Plaintiff and / or her counsel for failure to comply with this Court's May 12, 2023 order, is, GRANTED IN PART and DENIED, without Calendar No.: Event ID: TENTATIVE RULINGS

3050933 CASE NUMBER: CASE TITLE: HILDEBRAND VS OVERTURE SAN MARCOS [IMAGED] 37-2021-00000121-CU-PO-CTL prejudice, IN PART.

Though unclear to the Court, it appears as if Plaintiff's compliance, if any, with the Court's underlying order occurred, if at all, after Defendants filed this Motion. Given the history of this case, the Court questions whether Plaintiff would have complied with the Court's order but for Defendants' filing of this Motion.

Given Plaintiff's reluctant compliance, if any, with the Court's order, this is an appropriate case for the imposition of escalating sanctions; however, Defendants - as the moving party - bear the burden of identifying the nature of the proposed sanctions. Here, Defendants have broadly proposed the following sanctions, at page 7 of their memorandum: '1. Issue sanctions determining that issues raised in specific Form Interrogatories and Special Interrogatories are deemed established in favor of Defendants; 2. Evidence sanctions precluding plaintiff from offering any evidence or witness testimony on any claims or contentions addressed in Form Interrogatories and Special Interrogatories.' These proposals lack specificity, which ultimately undermines Plaintiff's right to adequate notice and results in an ambiguous order; however, this part of the Court's order is DENIED without prejudice to Defendants' ability to renew the Motion.

Plaintiff's failure to comply with the Court's order by serving Code-compliant responses was without substantial justification. Attorney Izu's $295 hourly rate is reasonable. The services, as limited, was reasonable and necessary. Plaintiff is directed to pay total sanctions, including the filing fee, is $1,535.

The Court also notes that the trial date of April 12, 2024 and related pre-trial dates. See ROA # 97. The Court is receptive to an adjustment of these dates based on the potential overlap of the January 19, 2024 hearing date and the expert exchange dates.

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3050933