Judge: Michael E. Whitaker, Case: 19SMCV01711, Date: 2024-08-29 Tentative Ruling

Case Number: 19SMCV01711    Hearing Date: August 29, 2024    Dept: 207

TENTATIVE RULING

MOTION

On September 27, 2019, Plaintiff Peter Kleidman (“Plaintiff”) in pro per filed suit against Defendant RFF Family Partnership, L.P. alleging four causes of action for (1) breach of contract; (2) violation of Civil Code § 1671; (3) violation of Bus. & Prof Code § 10242.5; (4) usury; and (5) money had and received. 

On January 13, 2022, the Court issued an order, declaring Plaintiff a vexatious litigant, requiring Plaintiff to either post $40,000 security or dismiss the instant lawsuit, and entering a prefiling order requiring Plaintiff to obtain leave before filing any new litigation in California in propria persona. 

On March 3, 2022, the Court dismissed the action with prejudice due to Plaintiff’s failure to post the $40,000 security.  On April 28, 2022, Plaintiff attempted to appeal the dismissal, but the appellate court declined to issue a prefiling order to allow the appeal to proceed, and the appellate court issued the remittitur on March 29, 2023.

Nearly a year and a half later, Plaintiff now moves to vacate the aspect of the January 13, 2022 order requiring Plaintiff to obtain leave before filing any new litigation in pro per.  Plaintiff does not dispute the Court’s dismissal of the action for Plaintiff’s failure to post $40,000 security.  Plaintiff’s motion is unopposed.

ANALYSIS

I.                MOTION TO VACATE

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].) 

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

A.    Discretionary Relief

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

B.    Mandatory Relief

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.

(Code Civ. Proc., § 473, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.) 

            The law is clear that in all instances, a motion to vacate an order must be made within six months of the order appealed from.  Thus, relief under Section 473 is unavailable.

            As such, Plaintiff brings his motion “pursuant to the Court’s inherent power, and statutory authority […] to create and fashion new procedures and remedies” pursuant to Code of Civil Procedure section 187 and Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th 985, 1008-1009 (hereafter Coastline). 

            In Coastline, the appellate court held that the trial court acted within its inherent authority when it reconsidered a prior order regarding the return of funds to a creditor versus a third party before the time to appeal had expired.  By contrast, here, the time for Plaintiff to appeal has long since expired.  In fact, Plaintiff  filed an appeal challenging the dismissal of the action and the appellate court issued an order dismissing the appeal, followed by the remittitur, nearly a year and a half ago.

Plaintiff also cites to Key System Transit Lines v. Superior Court of Alameda County (1950) 36 Cal.2d 184, 187-188 (hereafter Key System) as standing for the proposition that the Court has the inherent power to vacate an order based on the Court’s misapprehension of the state of the record.  But Key System involved a motion to vacate based on Section 473, not a motion to vacate pursuant to the Court’s inherent authority granted by Section 187.

CONCLUSION AND ORDER

            Therefore, the Court denies Plaintiff’s motion as untimely.  The Clerk of the Court shall provide notice of the Court’s ruling.      

DATED:  August 29, 2024                             ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court