Judge: Michael E. Whitaker, Case: 21STCV25331, Date: 2025-03-06 Tentative Ruling
Case Number: 21STCV25331 Hearing Date: March 6, 2025 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE March 6, 2025
CASE NUMBER 21STCV25331
MOTION Motion to Vacate/Set Aside
Order
MOVING PARTIES Cross-Defendants Adam Gruen and Amanda Gruen
OPPOSING PARTY Cross-Complainant Palisades Homeowners
Association #3
BACKGROUND
This case arises from a dog bite that injured a minor.
The operative First Amended Complaint, filed by Plaintiffs Poppy
Webster, on her own behalf and as guardian ad litem for her minor children
Ludovica “Lulu” Pietroiacovo and Valentina Pietroiacovo, and Michael
Pietroiacovo (“Plaintiffs”) against Defendants Adam Gruen and Amanda Gruen (the
“Gruens”) and Palisades Homeowners Association #3 (“HOA”) alleges five causes
of action for (1) strict liability; (2) negligence; (3) negligent infliction of
emotional distress (bystander); (4) premises liability; and (5) public and
private nuisance.
HOA filed a cross-complaint against the Gruens for (1) breach of
contract; (2) express indemnification; (3) implied indemnity/equitable
indemnification; (4) equitable contribution; (5) declaratory relief: duty to
defend; and (6) declaratory relief: duty to indemnify.
On November 21, 2024, the Court granted HOA’s unopposed motion for
summary adjudication on its cross-complaint that the Gruens owed a duty to
indemnify and defend the HOA against Plaintiffs’ operative complaint.
The Gruens now move to set aside/vacate the Court’s November 21, 2024
order granting summary adjudication, pursuant to Code of Civil Procedure
section 473, subdivision (b) on the grounds that Counsel’s failure to oppose
the MSA was due to an inadvertent miscalendaring error.
The Gruens’ cross motion for summary adjudication on the HOA’s
cross-complaint is currently scheduled for March 25, 2025.
The HOA opposes the motion and the Gruens reply.
ANALYSIS
I.
DISCRETIONARY AND MANDATORY RELIEF
“Proceeding to judgment in the absence of a party is an extraordinary
and disfavored practice in Anglo–American jurisprudence: The policy of the law is to have every
litigated case tried upon its merits, and it looks with disfavor upon a party,
who, regardless of the merits of the case, attempts to take advantage of the
mistake, surprise, inadvertence, or neglect of his adversary.” (Au-Yang v. Barton (1999) 21 Cal.4th
958, 963 [cleaned up].)
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.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.)
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.)
Here, the Gruens advance the attorney declaration of Ninos
Saroukhanioff, which provides:
2. HOA filed their Motion for Summary
Adjudication concerning “indemnity,” against GRUENS, on December 4, 2023. This
motion was set for hearing on November 14, 2024, and continued to November 21,
2024. The Court granted HOA’s MSA because GRUENS did not file an opposition.
3. The GRUENS also filed their Motion for Summary
Adjudication concerning “indemnity,” against HOA, on December 5, 2023. HOA
could not get an early hearing date on the Court’s reservation system,
therefore, this motion is currently set for hearing on March 14, 2025.
4. A third Motion for Summary Adjudication, which
concerns “punitive damages,” was filed by HOA against the Plaintiffs, on
December 20, 2023. Most notably, this motion is currently set for hearing on
March 20, 2025.
5. Due to mistake and excusable neglect, I
misunderstood that the HOA’s MSA set for November 21, 2024, was instead set for
March 20, 2025, and vice versa. As a result, I mistakenly believed that their
opposition was not due until 14 days before March 20, 2025.
6. HOA will not be prejudiced if the Court grants
relief to the GRUENS because the trial is not set until May 19, 2025 (more than
six months from today), and because HOA will, nevertheless, need to file an
opposition, to GRUENS’ MSA anyway,
7. A true copy of the Court’s Order dated
November 21, 2024, Granting HOA’s Motion for Summary Adjudication. (See
Exhibit-A).
8. Plaintiffs will not be prejudiced because
Plaintiffs have already settled their case with the GRUENS for $1.3 million.
9. The GRUENS request that their attorney's
mistake should not be imputed to them.
(Saroukhanioff
Decl. ¶¶ 2-9.)
Thus, the Gruens have advanced an
attorney declaration demonstrating that the failure to oppose the motion for
summary adjudication was due to counsel’s mistake, surprise, inadvertence, or
excusable neglect. In particular,
counsel inadvertently mixed up the three pending motions for summary
adjudication and inadvertently calendared the hearing as being in March, as
opposed to November.
The HOA opposes, arguing that an
attorney’s failure to timely oppose a motion is not “excusable” neglect as a
matter of law. In support, the HOA cites
to Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682 (hereafter Garcia). In Garcia, the attorney timely opposed
the motion for summary judgment, but after seeing the court’s tentative ruling,
submitted a supplemental brief in opposition that raised a new argument. However, in the meantime, the Judge had
signed the order granting summary judgment.
(Id. at p. 679.) The
appellate court held that the attorney’s failure to timely present an argument
raising a triable issue of material fact was not “excusable” to warrant relief
under section 473. (Id. at p.
682.)
In so holding, the Garcia court analyzed two other cases
involving the application of Section 473.
In Avila v. Chua (1997) 57 Cal.App.4th 860, the trial court held
that counsel’s failure to oppose a motion for summary judgment due to a
miscalendaring error was not “excusable” neglect warranting relief, but the
appellate court reversed, analogizing the situation to a default and
emphasizing the strong public policy of adjudicating disputes on the merits.
In Bernasconi Commercial Real Estate v. St. Joseph’s Regional
Healthcare System (1997) 57 Cal.App.4th 1078, the party sought relief from
mandatory dismissal under Code of Civil Procedure sections 583.210 and 583.250
for failure to serve the complaint within three years. The appellate court clarified that while Section
473 may be used to overturn dismissals entered pursuant to discretionary dismissal
statutes “only if limited to those dismissals which are the procedural
equivalent of defaults—i.e., those which occur because the plaintiff’s attorney
ahs failed to oppose a dismissal motion” but not to effectively litigate an
attorney’s malpractice in failing to raise certain arguments or to overturn
dismissals entered pursuant to mandatory dismissal statutes, as that
would “abrogate” the dismissal statutes “by implication.” (Id. at p. 1082.)
Here, this case is closest to Avila. Counsel’s failure to oppose the motion for
summary adjudication at all is akin to a default, where the Gruens were
deprived of any argument in opposition.
As such, the Court finds the neglect was excusable and that it is
appropriate to vacate the order granting summary adjudication and to re-set the
hearing on the motion for March 25, 2025.
CONCLUSION
For the foregoing reasons, finding
the Gruens’ failure to oppose the motion for summary adjudication to be the
result of counsel’s inexcusable neglect, the Court grants the Gruens’ motion to
set aside/vacate the Court’s November 21, 2024 order granting the HOA’s
unopposed motion for summary adjudication.
That order is hereby vacated and the Court re-sets the hearing on that
motion to March 25, 2025 at 8:30 a.m. in Department 207.
Further, the Court acknowledges that effective January 1, 2025, any
opposition to a motion for summary judgment/adjudication is due 20 days prior
to the hearing, yet today’s hearing is only nineteen days prior to the
rescheduled hearing.
Notwithstanding, the Court will consider the Opposition to motion for
summary adjudication attached to the Gruens’ Reply in support of the instant
motion (and served on the HOA) to be timely
However, as a courtesy to the Court, in the interest of case file
management, the Court orders the Gruens to file Opposition.
The HOA’s Reply, if any, shall be filed and served under Code of Civil
Procedure section 437c, subdivision (b)(4) [11 calendar days before the March
25, 2025 hearing].)
All parties shall lodge courtesy copies of the moving, opposition and
reply papers directly in Department 207 forthwith.
The Gruens shall provide notice of
the Court’s orders and file the notice with a proof of service forthwith.
DATED: March 6, 2025 ___________________________
Michael E. Whitaker
Judge
of the Superior Court