Judge: Mark A. Young, Case: 20SMUD00935, Date: 2023-01-11 Tentative Ruling

Case Number: 20SMUD00935    Hearing Date: January 11, 2023    Dept: M

CASE NAME:           1169 Palms LLC, et al., v. Victorio Campos

CASE NO.:                20SMUD00935

MOTION:                  Motion to Vacate Dismissal

HEARING DATE:   1/11/2023

Legal Standard

Relief under section Code of Civil Procedure section 473(b) is either discretionary or mandatory. Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . ..” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) 

Analysis

Defendant Campos moves to vacate and set aside the Court’s order issued on August 25, 2022, in which it: 1) struck Campos’s entire opposition to the Cross-Defendants 1169 Palms’s special motion to strike; 2) granted the anti-SLAAP motion in its entirety, and 3) dismissed causes of action in Campos’ cross-complaint. In his motion, Campos more specifically requests that the August 25, 2022, judgment be vacated, and he be allowed to file opposition in compliance with the court rules.  While Campos only refers to the dismissal of the sixth and seventh causes of action in the notice, Cross-Defendants had only moved to strike the first, second, third, fourth, eighth, eleventh, twelfth, thirteenth, fourteenth and fifteenth causes of action—but not the sixth or seventh.

Procedurally, the Court concurs that Campos failed to provide notice of grounds for the requested relief. (See CCP § 1010; CRC, Rule 3.1110(a).) “Generally, the trial court may only consider those grounds specified in the notice.” (366-386 Geary St., L.P. v. Superior Ct. (1990) 219 Cal.App.3d 1186, 1199.) Indeed, there is no reference to the statutory authority to notice the relief set forth in the memorandum pursuant to Code of Civil Procedure sections 473 or 473.5. That alone is sufficient to deny the motion.  The Court, however, will consider the motion as to relief under Code of Civil Procedure section 473. As to section 473.5, the section facially does not apply. Furthermore, Campos requests relief under the “mandatory” relief for attorney fault. (See Mot. at 5, 7-8.) Simply put, this section also does not apply to these circumstances. The Court’s order striking the oversized/untimely opposition is not an entry of default, default judgment or dismissal entered against the client. Thus, mandatory relief for attorney fault is not available.  

As to the merits of the section 473(b) relief, Campos principally points to time restraints as a basis for counsel’s mistake/surprise/excusable neglect. Campos provides that his counsel’s law clerk made a simple clerical mistake by mis-calendaring the original date.  Campos offers that because of this mistake, the Court granted too-brief a period to compile an opposition. Counsel explains that this required an incredible amount of work, and because of the severe time constraints, he mistakenly filed an opposition exceeding 15-pages. At the time, Counsel believed that the opposition would exceed 200 pages, and that the memorandum would exceed the page limits, but neglected to request a page limit extension.   

Counsel also points out extenuating circumstances. For instance, he claims that he and his family suffered from a fire in 2018, which burned down their Malibu home. Counsel claims that he and his son developed PTSD. Counsel states that he was unable to work from August 3, 2022, to August 7, 2022, as it coincided with the last week of his son’s summer break. Counsel also experienced lingering neurological effects from his COVID-19 infection. Counsel also observes that he took this case pro bono. Counsel contends that the Court failed to accommodate him for his related disabilities.

Counsel does not adequately explain how such “time constraints” and extenuating circumstances led him to file an oversized memorandum. As to the mis-calendaring, Counsel cannot recycle this same excuse. The Court already accommodated counsel for the mis-calendaring at the initial ex parte hearing. On August 2, 2022, the Court granted counsel’s request for a continuance, over opposition, and set the hearing for August 25, 2022. Nine courts days prior to the August 25, 2022, hearing date was August 12, 2022. Thus, Counsel was granted an additional eight days to write and serve an opposition (August 4^th through 12^th). Counsel then filed and served an opposition on August 9, 2022. Clearly, since an opposition was served and fully briefed two days early, the Court’s continuance permitted counsel sufficient time to prepare a 38-page opposition.

As to the extenuating circumstances, the Court does not find that counsel’s generalized claims of PTSD, need for child-care, or linger effects of COVID-19 convincingly establish why Counsel filed an oversized memorandum. Again, counsel filed the fully briefed (albeit oversized) memorandum two days early. This fact belies counsel’s claim that these issues impacted his ability to follow the court rules.

Accordingly, the motion is DENIED.