Judge: Michael E. Whitaker, Case: 20STCV45486, Date: 2022-12-19 Tentative Ruling

Case Number: 20STCV45486    Hearing Date: December 19, 2022    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

Defendants Kimberly J. Simone, Brenna Lui, and Anita Lui (collectively, Defendants) seek relief from the Court’s order of April 8, 2022, in which the Court granted Plaintiff’s request for certain evidentiary sanctions for Defendants’ failure to comply with the Court’s order of January 7, 2022.  Plaintiff opposes the motion, and in the alternative requests monetary sanctions against Defendants.  Defendants 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. 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.)

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.)

Here, Defendants argue that provisions for mandatory relief from default or dismissal based on an attorney affidavit of fault under section 473(b) similarly mandates relief from the Court’s orders of April 8, 2022.  However, Defendants fail to provide any authority to support said proposition.  (See Defendant’s Motion, 2:7-8.)  As such, the discretionary relief provision of Section 473 shall be applied. 

Defendants argue their failure to file an opposition to Plaintiff’s motion for sanctions, and as a result the Court’s granting of said motion, was due to Previous Counsel’s inexperience, mistake, inadvertence, or excusable neglect.  Defendants advance the declaration of their previous attorney, Warren Crowley (Previous Counsel), in support of said proposition.  Previous Counsel avers the following:

• On March 3, 2022, Plaintiff filed a motion for issue, evidentiary and monetary sanctions based on the above court order wherein a hearing was scheduled for March 25, 2022.

   

• On March 22, 2022, before the hearing, I sent further responses to discovery requests believing that it complied with the court’s 1/7/22 order.

• I reasonably believed that the responses complied with the court’s order and also resolved all issues such that the motion for evidentiary sanctions was not necessary anymore. Because I thought that Plaintiff’s counsel would act with professional courtesy and because I thought that the discovery issues were resolved, I did not file oppositions. I thought that the parties could work out the discovery dispute informally because responses were served. This was a mistake on my part as Plaintiff’s counsel did not withdraw the motion.

• On March 24, 2022, I sent an email to Plaintiff’s counsel confirming that sanctions would be paid by the following morning and verifications will be produced. I specifically stated “Not sure what other discovery matters remain unaddressed” and asked Plaintiff to advise so that I could produce those that day. I also indicated that regarding the documents, Defendants have produced everything they have. “The issue was that the discovery language was ambiguous as to possible further documents not yet produced. We agreed that I would amend the language to list that we have produced everything, per each request. I was not aware of the privilege log because there are no privileged documents to produce.”

   

• In response to the aforementioned email, Plaintiff filed a notice of non-opposition.

• Due to counsel’s mistake, inadvertence and excusable neglect, I did not file oppositions and thus, the court was unaware that Defendants actually served further responses to the requests for production of documents as well as other discovery requests.

   

• On March 24, 2022, I sent verifications for the aforementioned discovery responses and asked Plaintiff’s counsel to take the motion off-calendar. I indicated that if I am sanctioned over $1,000, I have to report it to the State Bar and that it would not be a great start to my career as a recently sworn in attorney. I told Plaintiff’s counsel I inherited the case from a previous associate and has been picking up the pieces. I indicated that if there were still deficiencies, the parties could meet and confer.

   

• On March 25, 2022, the matter was called for hearing and I appeared. At the hearing, I explained to the court that there was a reassignment of this file from Mr. Taylor and there had been a breakdown of communication with Plaintiff’s counsel. We had requested additional time to evaluate the discovery issues with Plaintiff’s counsel and asked the court to deny the request for sanctions. The court granted the motion in part and ordered Plaintiff to re-submit a proposed order with amendments as directed by the Court. I do not specifically recall if I informed the court that discovery responses were served to Plaintiff’s counsel.

   

  (Declaration of Warren Crowley, ¶¶ 8-15.).

   

              In summation, Defendants argue that Previous Counsel’s assumption that he did not need to file a motion in opposition based on his attempts to serve discovery responses on Plaintiff amounts to attorney mistake, inadvertence, or excusable neglect.  Defendants further argue Previous Counsel’s alleged inadvertence resulted in the Court granting Plaintiff’s motion for evidentiary sanctions against Defendants. 

   

              In opposition Plaintiff argues that Defendants’ counsels’ actions leading up to the motion for evidentiary sanctions amounted to either a deliberate strategy by counsel to stonewall Plaintiff from obtaining routine discovery responses, or in the alternative, evidences an inexcusable lack of internal controls and supervision of attorneys within counsel’s law firm.  In particular, Plaintiff argues that if Previous Counsel was acting with neglect due to his inexperience, Robert Gonter (Gonter) who was serving as lead trial attorney, was aware of the discovery abuses at issue and should have taken action sooner to correct Previous Counsel’s mistakes, for example Previous Counsel’s failure to oppose Plaintiff’s motion for monetary sanctions.  Plaintiff advances the following evidence in support of said proposition. 

   

• Gonter has been the attorney of record for this case since the law firm of Gates, Gonter, Guy, Proudfoot & Muench, LLP substituted into this matter.  (See Declaration of Roberto Dominguez Quiroga, ¶ 3, Exhibit 1.)

   

• Gonter provided further Discovery responses on behalf of Defendant Brenna Lui on July 27, 2021.  (See Declaration of Roberto Dominguez Quiroga, ¶ 5, Exhibit 2.)

• On November 15, 2022, Plaintiff’s counsel’s office received Defendants’ Motion for Relief from Waiver of Objections for failure to timely respond to discovery, which was authored by Gonter.  (See Declaration of Roberto Dominguez Quiroga , ¶ 6, Exhibit 3.)

• In Defendants’ Ex Parte application to continue trial, one of the grounds Defendants alleged in seeking a trial continuance was "[l]ead trial counsel for the Defense, K. Robert Gonter. Jr. has eleven (11) cases set for trial between the filing of this Ex Parte and the currently scheduled trial date."  (See Declaration of Roberto Dominguez Quiroga, ¶ 20, Exhibit 9.)

   

  Though Plaintiff establishes Gonter should have been more attentive due to Previous Counsel’s inexperience and record of mistakes, the Court finds Plaintiff has failed to prove that Gonter or anyone within Gonter’s law firm was acting deliberately.  As such, the Court finds Defendants have established that their failure to oppose Plaintiff’s motion for evidentiary sanctions was due to attorney inexperience, mistake, and neglect.

   

  Next, Plaintiff argues that he will suffer sever prejudice if the Court grants Defendants relief from the evidentiary sanctions ordered against them on April 8, 2022.  Plaintiff attests the following: (1) Plaintiff and the Court have already expended significant resources in connection with this case; (2) Defendants’ Ex Parte application for trial continuance denied Plaintiff’s right to his day in Court for a year to May 26, 2023; (3) Lifting previously imposed sanctions will result in an approximated net increase in expert retention fees and litigation investigation to the sum of tens of thousands of dollars. 

   

  The Court however finds that in light of the fact that Plaintiff has more than a year to conduct further discovery, in addition to the strong public policy interest of disposition of a case on the merits, the circumstances weigh in favor of granting relief.

CONCLUSION AND ORDER

            Accordingly, the Court grants Defendants’ motion for relief from the Court’s order on April 8, 2022, ordering evidentiary sanctions against Defendant and vacates the April 8, 2022 order imposing evidentiary sanctions against Defendants. 

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