Judge: Michael E. Whitaker, Case: 19STCV42106, Date: 2023-06-22 Tentative Ruling

Case Number: 19STCV42106    Hearing Date: June 22, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Defendant Julie Lee Gile (Defendant) moves for relief from the Court’s order of December 12, 2022 finding Defendant is to submit to financial discovery pursuant to Civil Code section 3295, subdivision (c).  Plaintiff Chris Rohrig (Plaintiff) opposes the motion.  Defendant submits a declaration in reply.

ANALYSIS

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].)

1.     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), emphasis added.)

Mandatory relief under section 473(b) is only available to orders which are procedurally equivalent to a default.  (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.)  Accordingly, the mandatory relief provision cannot be applied to the December 12, 2022 ruling which merely orders Defendant to submit to financial discovery, and thus does not conclusively deprive Defendant of her day in court. (Id. at p. 621.)

2.     Discretionary Relief

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.4th 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.)

Defendant argues her failure to file an opposition to Plaintiff’s Motion to Conduct Discovery of Defendant Julie Lee Gile’s Financial Information, resulting in the Court granting that motion, was due to Defendant Counsel’s mistake, inadvertence, and/or excusable neglect.  Defendant advances the declaration of her attorney, Maria A. Grover (Grover), in support of said proposition.  Grover avers to the following:

·       Plaintiff filed her motion to conduct discovery of defendant Julie Lee Gile’s financial information, and set the motion for December 12, 2022. Plaintiff’s counsel served the motion by email upon defense counsel Joel E. Zari, who in turn, on November 21, 2022, immediately emailed the motion me (sic), because I am the law and motion attorney at Knapp, Petersen & Clarke. I acknowledged Mr. Zari’s email and asked my secretary to calendar the date of the opposition. My secretary therefore created a notification on my calendar that indicated an opposition to the motion was due November 29, 2022.

·       I sold my family home of 20 years during this period. I had begun the process of packing and downsizing to a smaller home in a new community in Northern California, as I was simultaneously completing my tasks at work. Although I looked at my calendar, there were many matters on it, and she (sic) simply missed the task to prepare the opposition to plaintiff’s motion. Additionally, it appears that Mr. Zari’s secretary failed to calendar to the hearing on the motion, so no attorney appeared at the hearing.

·       After my office received the notice of ruling, I called plaintiff’s counsel Michael Marzban at least three times and left messages. I also him to attempt to meet and confer about my errors and an attempt to fashion a fair resolution for Ms. Gile, but he did (sic) and 21, 2022, are attached hereto collectively as exhibit A.

(Declaration of Maria A. Grover, ¶¶ 2-4.)

            In summation, Defendant argues that Garcia failed to notice the due date for the opposition to the subject motion marked on her calendar due to inadvertence likely exacerbated by the strain of beginning the process of packing up and moving from her home during this period.  Garcia further explains that a secretary from her firm failed to calendar the hearing date.  Defendant thus did not submit an opposition or attend the hearing on the motion to conduct financial discovery, and concludes this amounts to attorney mistake, inadvertence, or excusable neglect which resulted in the Court granting the subject motion.

            In opposition, Plaintiff argues Defendant’s failure to file an opposition or attend the hearing on the motion to conduct financial discovery did not constitute excusable neglect but rather outright failure of Garcia to fulfill her duties as Defendant’s counsel and thus discretionary relief should be denied. 

Plaintiff further notes that Defendant has failed to file an opposition to the motion to conduct financial discovery in compliance with Section 473, subdivision (b) which mandates “an [a]pplication for relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted”.  However, the Court finds Defendant has substantially complied with this requirement by outlining in her moving papers for the instant motion the arguments she would make in opposition to the motion to conduct financial discovery.  (See generally Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 933.)

The Court finds, in light of the strong public policy of disposing cases on their merits, the circumstances weigh in favor of granting the relief requested by Defendant.

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s motion for relief from the Court’s order on December 12, 2022, ordering Defendant submit to financial discovery, and vacates the order issued on December 12, 2022. 

            Further, the Court re-sets the hearing on Plaintiff’s motion to conduct financial discovery on August 14, 2023 at 1:30 P.M. in Department 32.  Defendant’s opposition papers shall be filed and served on or before July 24, 2023.  Plaintiff’s reply papers, if any, shall be filed and served on or before August 4, 2023. 

            Defendant shall provide notice of the Court’s ruling and file a proof of service of such.