Judge Michael D. Washington, Case 37-2019-00040629-CU-PN-NC 2024-03-04 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2019-00040629-CU-PN-NC, Date: 2024-03-04 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 01, 2024

03/04/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited Professional Negligence Motion Hearing (Civil) 37-2019-00040629-CU-PN-NC SAMANTHA CHILDS VS POLANSKY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/13/2024

This matter will be heard by the Honorable Blaine K. Bowman at 1:30 p.m. in the North County Courthouse on Monday, March 4, 2024. It is anticipated that the matter will be heard in Department N-31. However, due to some administrative reshuffing and reassignment of cases, there is a possibility that the courtroom in Department N-31 may be in use for other matters at that time. As such, the parties are advised to contact the Courtroom Clerk in Department N-31 on or after 10:30 a.m. the morning of the hearing to confirm the courtroom in which the matter will be heard.

The Motion for Relief re Filing of Memorandum of Costs brought by plaintiff Samantha Childs (Plaintiff) is GRANTED. Plaintiff shall have until Friday, March 15, 2024 to e-file and serve a fresh, standalone, clean copy of the Memorandum of Costs (Summary) that is attached to the Declaration of William Small as 'Exhibit F.' (ROA 270, Ex. F.) Failure to file a clean copy of said Memorandum of Costs (Summary) by the deadline may result in it being rejected, summarily stricken by the Court, or stricken at the request of one of the parties.

After a jury trial, Judgment was entered in this case on May 8, 2023. Notice of Entry of Judgment was served a few months later on August 4, 2023. Three-and-a-half weeks later, on August 22, 2023, Plaintiff attempted to file a 'memorandum of costs.' That 'memorandum of costs' was on Judicial Council Form MC-012 and is entitled a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest. (Emphasis added.) Hereinafter, to avoid confusion, that 'memorandum of costs' will be referenced as the 'Post-Judgment Cost Bill.' The Court Clerk rejected the Post-Judgment Cost Bill on October 30, 2023.

According to Plaintiff's counsel, the rejection of the Post-Judgment Cost Bill went to his legal assistant.

Plaintiff's counsel appears to gloss over what appears to be a failure of communication between himself and his legal assistant, declaring that: Because I did not personally submit the Memorandum of Costs for filing, I did not personally receive the electronic rejection notice from the Court. Infotrack only sent this notice to my legal assistant's email account, because the Memorandum of Costs was submitted via her Infotrack account. I was not aware of the Notice of Rejection of Electronic Filing, until I started preparing [an] opposition...in early December 2023...' (ROA 270, ¶ 9.) From a factual standpoint, it is well within reason to infer that an attorney communicates with his legal assistant several times a day during business hours. Moreover, even in a post-Covid work-from-home environment and/or with acknowledgment of some of the realities of modern legal practice that legal Calendar No.: Event ID: TENTATIVE RULINGS

3091576 CASE NUMBER: CASE TITLE: SAMANTHA CHILDS VS POLANSKY [IMAGED] 37-2019-00040629-CU-PN-NC assistants may work part time, it is reasonable to assume (particularly in the absence of any additional clarity provided by counsel who would know) that counsel communicates with his legal assistant on a semi-regular basis throughout a given week. There is no excuse provided on these facts as to why the legal assistant did not communicate the rejection to counsel immediately (or even within a reasonable time) upon receiving it electronically on October 30, 2023.

In any event, the reason given by the Court Clerk who rejected the Post-Judgment Cost Bill was that: 'Deposition fees are not usual cost after judgment.' The Court Clerk was correct about the unusual nature of the request and correct about the decision to reject the document. To the extent that there was some confusion about this rejection, Plaintiff takes the position that she merely used the wrong form, but that the substance of the costs laid out in the memorandum that was filed are still correct. Taking this argument one step further, Plaintiff argues that because the commonly-used Judicial Council Form for seeking pre-judgment costs is designated as an 'optional' use form (see Form MC-010) it was not improper or in error for her to use some other document as her official 'memorandum of costs.' This argument misses the mark. It is not that Plaintiff used some other formatting or some other pleading to set forth her costs consistent with California Rules of Court, rule 3.1700 – it is that she used the wrong form, a form that is designated for a different purpose altogether. This error rests wholly on Plaintiff, and the Court is not inclined to exercise discretion to rectify a 'clerical error' to the extent that Plaintiff is seeking to frame it as a clerical error that the Court Clerk rejected a Judicial Council Form that was the wrong form for the task at hand.

The Court notes some argument in the briefing – indeed, significant argument – attempting to frame the actions of defendant VCA Animal Hospitals Inc. and Benjamin Polansky DVM (collectively, Defendants) as having stipulated, waived, or otherwise acquiesced to the filing of an incorrect form, such that Defendants no longer have standing to challenge its impropriety. The first problem with this argument is that Defendants are not, strictly speaking, challenging the filing of the document – the Court Clerk rejected it. This is not a motion whereby the Court Clerk allowed an improper filing and Defendants are now moving to have it stricken. On the contrary, the Court Clerk correctly rejected the document, and now Plaintiff is seeking relief as to that error. Defendants' own conduct of potentially having waived or accepted the document as proper by not challenging it when Defendant filed a Motion to Strike or Tax Costs targeting that improper document is not germane to whether or not the Court Clerk's decision to reject the document was proper in the first instance. Again, the Court concludes that the rejection of the document was proper.

In the alternative to the above effort to have the improper filing recategorized as proper by this Court, Plaintiff also seeks relief from the filing of the wrong document in the form of extending the deadline and allowing Plaintiff to file a proper 'memorandum of costs' now. Discretionary relief under Code of Civil Procedure § 473(b) requires a showing of mistake, surprise, inadvertence, or excusable neglect.

Mandatory relief under Code of Civil Procedure § 473(b) requires a showing of mistake, surprise, inadvertence, or neglect – with no qualifier for whether or not the neglect is 'excusable.' Notably, mandatory relief is not appropriate where the mistake in question is one of law. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 5:313 (citations omitted) ('An attorney's mistake of law... is not a ground for relief when the 'mistake' is 'simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.'').) The challenge of the instant case is in parsing out the precise error or mistake that is to be set aside.

Fundamentally, the mistake at issue is the failure to file a 'memorandum of costs,' since the attempted filing has been rejected by the Court Clerk. The reason for that failure appears to be a mistake of law in that Plaintiff's counsel selected the wrong form and attempted to file it in lieu of a code-compliant 'memorandum of costs.' As such, even if this was the mistake of an attorney that would qualify for mandatory relief under Code of Civil Procedure § 473(b), it was a mistake of law and thus is not a ground for relief under the mandatory provision of the statute.

There appear, however, to have been a string of other mistakes, surprises, inadvertent actions, or Calendar No.: Event ID: TENTATIVE RULINGS

3091576 CASE NUMBER: CASE TITLE: SAMANTHA CHILDS VS POLANSKY [IMAGED] 37-2019-00040629-CU-PN-NC instances of excusable neglect. First, as mentioned above, there appears to have been some miscommunication between Plaintiff's counsel and his legal assistant. This is not particularly pertinent, however, in terms of an error from which relief can be sought because it appears that the rejection was sent out after the time window for submitting a proper 'memorandum of costs' had run. In other words, even if the legal assistant had communicated the rejection to counsel immediately, there was no time left to file a code-compliant 'memorandum of costs.' By that point, relief via Court order was already needed. What this issue does go to is the question of whether the motion seeking relief was brought in a timely manner.

That initial communication to the legal assistant was made on October 30, 2023. Plaintiff's counsel claims to have learned of the error over a month later in 'early December 2023.' Thereafter, Plaintiff's counsel, commendably, contacted opposing counsel in an effort to resolve the issue informally. Those efforts took place on around the holiday season between late December 2023 and early January 2024.

With the exception of the month of time in which Plaintiff's counsel and his legal assistant were apparently not communicating, these efforts appear to have been reasonable.

Plaintiff subsequently made some efforts to address the error, utilizing quicker ex parte proceedings.

The effort at correcting the issue on an emergency basis is reflective of seeking to resolve the matter timely. What slightly undercuts this timeliness argument is the position taken by Plaintiff at the time.

Rather than simply owning the error and requesting to file a code-compliant 'memorandum of costs' (as she now requests in the instant motion, at least in the alternative), the way in which Plaintiff sought relief was to slough-off her counsel's mistake of law onto others. This approach delayed the ultimate resolution of the error unnecessarily and represented a strategic choice to focus on reassigning blame rather than on resolving the issue. In their opposition papers, Defendants persuasively characterize this as a 'deflection of accountability.' (The Court is unable to precisely cite where this otherwise persuasive argument appears because Defendants' opposition brief has a procedural error of its own in that Defendants failed to number the pages of their brief.) Ultimately, Defendants cite authority for the proposition that a delay of three or more months can be sufficient to deny relief under Code of Civil Procedure § 473(b) when there is no explanation for the delay. (Again, the page of the opposition brief that contains this citation cannot be provided because the brief does not have page numbers, but the cited cases include: Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 322 and Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529.) The problem with the instant motion is that while some of the delays were not particularly reasonable (like failing to communicate with one's legal assistant and churning time 'deflecting accountability') other delays were reasonable (such as the holiday time frame and taking time to negotiate informally with opposing counsel to address the issue). Taking these mixed reasons for the delay into account, the Court ultimately finds that the delay here was not so unreasonable as to warrant denying the motion for relief on discretionary grounds.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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