Judge: Mark H. Epstein, Case: 21SMCV01145, Date: 2024-12-11 Tentative Ruling

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Case Number: 21SMCV01145    Hearing Date: December 11, 2024    Dept: I

This is a motion by plaintiff for relief from the orders granting summary judgment or adjudication against him.  The argument relies primarily on the declarations of his counsel and counsel’s physician.  Counsel states that he was in the throws of a devastating mental illness and could not competently represent his client nor could he file the papers in opposition to two summary judgment motions, describing the situation in some detail.  Plaintiffs oppose, arguing that this is not a situation that came on suddenly, but rather was one that had been ongoing for a long time.  In addition, although counsel claims he was essentially incapacitated, he was actively litigating another case in another courtroom during the same period.

Fuller argues that under CCP 473(b), where counsel confesses to the malpractice, the court is obligated to grant the motion.  The defense notes that such is not the case with regard to summary judgment motions, citing to Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290.  The court agrees that Prieto limits the mandatory provision to situations of defaults or dismissals, not summary judgments.  The court therefore believes, notwithstanding some other authority holding to the contrary, that it has discretion in this case; it is not bound to set aside the rulings on the two summary judgment motions.  (McCourt’s motion for summary judgment was actually denied, but the alternative motion for summary adjudication was granted and the case was gutted.  Kubota’s motion for summary judgment was granted.  The court does not believe that this is a distinction with a difference in the context of the instant motion.)  But the court does not believe that the mandatory provisions are essentially a dead letter in this context.  As the court reads the statute, the court has discretion; there is no mandatory relief.  But the policies that animate the mandatory relief still have voice in this context.  While the voice is not a commanding one, it is still heard.

Thus, even if the court is not required to set aside the summary adjudication/judgment orders, the court has discretion in the matter.  And here, the court is inclined to exercise its discretion to grant (but plaintiff needs to read on before getting too excited).  This motion does not involve something like mis-calendaring.  The failure here was more significant.  Which is why counsel’s declaration was detailed and essentially confesses gross malpractice.  For all the court knows, it could be a career-killer.  And the court is not confident that counsel now has the matter under control fully.  The level of apparent candor in the declarations, along with the inevitable consequence of baring all of this on the public record (Fuller’s counsel elected not to file the motion under seal) strongly suggests to the court that the declarations are truthful.  Further, counsel’s statements are bolstered by a fairly detailed declaration by counsel’s treating psychiatrist.  But doubts as to whether counsel is up to the task still linger.

Of course, the court is well aware of the rule that client’s are responsible for their choice of counsel.  And that rule has bite.  But in this case, Fuller had already had prior counsel withdraw; Fuller was in no practical position to do much of anything about his counsel’s failure.  So while Fuller is indeed responsible for his choice of counsel, the court cannot find fault with Fuller in the sense of saying that the problem is really with the client, not the attorney.

That leaves the question whether the neglect is “excusable.”  Inexcusable neglect is not cause to set aside an order—even a very serious one—on the merits.  And the court has read the opposition’s suggestion that perhaps counsel had some greater degree of control than has been indicated.  But on the whole, the court tends to credit the moving declarations (by which the court means the declaration in the motion and the earlier-filed declarations).  Counsel is very forthright admitting his fault.  The court has seen the objections to the declarations, but believes that the objections are not well taken and they are OVERRULED.

In short, the court believes that there is excusable neglect due to plaintiff’s counsel’s illness.  Of some additional concern is the fact that the earlier declarations were filed on October 24, 2024.  The motion to vacate was not filed until almost a month later, on November 7, 2024, and even then only because the court set a time limit.  The court is concerned about that lag.  The court can get past that, but the concern remains.

However, there is a second, and more important, concern.  As the defense points out, a motion under section 473(b) must be accompanied by the relevant papers.  Here, that would (presumably) be the opposition to the two summary judgment motions.  Yet none was attached here.  Moreover, the statute says that in the absence of such papers, the relief “shall not be granted.”  That is language in the mandatory and it has been so held.  (Austin v. LAUSD (2016) 244 Cal.App.4th 918, 932-933 [holding the requirement to be mandatory in the summary judgment context, but allowing for substantial compliance].)  Here, the motion does not attach the proposed opposition, nor does it give detail on what the basis for such an opposition would be.  Because there is neither compliance nor substantial compliance, the court cannot grant the motion.

But having said that, the court is also aware that any doubts regarding section 473 must be resolved in favor of the party seeking relief.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)  And such is the case here.  Absent prejudice to the defense (and prejudice is not established by showing that the defense may now have to win on the merits), a motion for relief is to be liberally granted and a court’s discretion is reviewed more closely where the motion is denied than where it is granted.  (Ibid.)

The court will, therefore, DENY the motion for failure to attach the opposition papers, but will allow Fuller 5 court days to re-file the motion with the opposition papers.  The court recognizes that 5 court days is not a lot of time, especially during the holidays.  But these papers were due three months ago and the court has warned Fuller’s counsel—with Fuller personally present in court—multiple times about the need to bring an appropriate motion and the need to associate in additional help or co-counsel if necessary.  There has been adequate time to address that, and because Fuller was warned personally by the court in the sense that he was present when these concerns were articulated, time has essentially run out.  While the court recognizes that some of the delay was due to the illness in question and before the court’s warning, Fuller’s counsel stated that much of the work had in fact been done by the time it was due (although not all of it), and Fuller’s counsel states that the symptoms have abated since then.  McCourt and Kubota are entitled to have their motions heard and decided.  If the opposition is not persuasive, they are entitled to have the case (or large chunks of it) adjudicated in their favor.  The court has already had to vacate the trial date, and if the summary judgment/adjudication motions are denied, that alone is prejudicial to the defense.  Again, if Fuller’s counsel needs to associate in some assistance to help put the papers together, he ought to do so (or, more precisely, he ought to have done so already).  The time has come to get this done.  Along these lines, the court reiterates that it warned Fuller—and more than once—that he may need to associate in additional counsel.  Fuller has had plenty of time to do so and the choice not to do so can no longer be one from which Fuller is immune.  If the motion is not re-filed within the 5 day period, and with the papers in opposition to the two motions previously decided, then the court will not hear further from Fuller and the prior orders will stand. 

The court will say that if plaintiff is able to submit proper papers, the court would be very inclined to grant the motion under 473(b) and consider the opposition and also restore the two motions to the calendar.  The court would, of course, allow for replies.  The court does not want to re-hash the excusable neglect issue.  The court notes that the defense, in their opposing papers, did about all they could to make their case and they showed initiative in the evidence they were able to put forward.  Even so, the court is comfortable in its decision.

This is, in the court’s view, the most appropriate way forward.  If Fuller can oppose the motion, then he ought to have his day in court.  While the court understands that there will have been a cost and expense to McCourt and Kubota, in balancing the two the trial is the more important.  And if Fuller cannot successfully oppose the motions, then the defense will have a clean record on appeal.

The court will also be open to a monetary sanction to compensate the defense for the legal expenses in having to attend the prior hearings and for the opposition to this motion.  This is not meant to be a punishment to Fuller but rather to compensate McCourt and Kubota for the unnecessary legal expenses they had to incur due to the neglect on plaintiff’s part.  Finally, pending resolution of this issue, Fuller’s present summary judgment motion will be held in abeyance.  If the prior orders wind up standing, then this motion will be restored to the calendar.  If not, then events will have potentially overtaken it.