Judge Lee W. Tsao, Case 20STCV38179 2023-03-21 Tentative Ruling

Judge: Lee W. Tsao, Case: 20STCV38179, Date: 2023-03-21 Tentative Ruling

Case Number: 20STCV38179 Hearing Date: March 21, 2023 Dept: SEC

TENTATIVE RULING

Defendants Camino Real Foods, Inc. and Robert’s motion for relief from order granting summary judgment and or adjudication to the 4^th cause of action for Breach of Contract only and anticipated entry thereof is DENIED.

Opposing Party to give NOTICE.

Defendants Camino Real Foods, Inc. and Robert move for relief from order granting summary judgment pursuant to CCP § 473(b).

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. (CCP § 473(b).)

Defendants seek relief under the mandatory provisions of CCP § 473(b) based on mistake of counsel for its failure to file an opposition to the motion for summary judgment relating to the 4^th cause of action.

However, “Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17; see also Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th
1350, 1354–1355 - failure to include a request for a continuance pursuant to section 437c, subd. (h) in opposition to summary judgment does not constitute excusable neglect; Martin v. Johnson (1979) 88 Cal.App.3d 595, 606–607 - no abuse of discretion in refusing to vacate summary judgment due to attorney's error in submitting declarations not within the personal knowledge of the declarant.)

Movants contend that this case is analogous to a default judgment, citing Avila v. Chua (1997) 57 Cal.App.4th 860, 868, wherein the court granted relief for counsel’s failure to timely file evidence in opposition to a motion for summary judgment. However, Avila was subsequently disapproved by Second Appellate District, holding that “[i]t is not an appellate court's task… when interpreting a statute, to extend the scope of the statute to encompass situations “analogous” to those the statute explicitly addresses.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5^th 993, 1000.) Similarly, this court has no authority to grant relief based on CCP § 473(b) under these facts.

Accordingly, the motion is DENIED.