Judge: Michael E. Whitaker, Case: BC701398, Date: 2023-01-18 Tentative Ruling

Case Number: BC701398    Hearing Date: January 18, 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

MOTIONS

              Plaintiff Cheyenne Evans (Plaintiff) moves for (1) relief from the Court’s order of September 19, 2022, in which the Court granted the Motion to Exclude Plaintiff’s Expert, Dr. Andrew Fox; (2) vacation of the September 19^th Order, and (3) setting a new hearing on the Motion to Exclude to consider Plaintiff’s opposition attached with the instant motion.  Defendant Lainie Kazan (Defendant) opposes the motion.  

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court “may, upon any terms as may be just, 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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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).)  

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).)

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 September 19, 2022 order which merely excludes Plaintiff’s expert witness, and thus does not conclusively deprive Plaintiff of her day in court. (Id. at p. 621.)

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.)

Plaintiff argues her failure to file an opposition to Defendant’s Motion to Exclude Plaintiff’s Expert witness, and as a result the Curt’s granting of said motion, was due to Plaintiff Counsel’s mistake, inadvertence, and/or excusable neglect.  Plaintiff advances the declaration of her attorney, Lindsay Burton (Plaintiff Counsel), in support of said proposition.  Plaintiff Counsel avers the following:

• At that time, Defendant’s counsel expressly stated to Plaintiff’s counsel: “We agree to take the motion off calendar.” (Exh. 9.) As I understood it and as the context of the correspondence in Exhibit 9 confirms, this meant that Defendant was in fact taking off calendar the Motion to Exclude Dr. Fox from trial in exchange for Plaintiff agreeing to Defendant’s requested trial continuance. I believed based on Defendant’s counsel’s representation that there was then no need for Plaintiff to file an opposition to the Motion to Exclude because Defendant had agreed to take it off calendar and because the parties had agreed to a trial continuance to complete expert discovery.

   

• After Plaintiff agreed to the continuance and Defendant’s counsel agreed to take the Motion to Exclude off calendar, Defendant indicated that they would now be available to depose Dr. Fox on the 13th. I informed Defendant’s counsel that Dr. Fox was no longer available on that date. I was also no longer available. Again, Dr. Fox was released because Defendant’s counsel had previously declined that date and my office released Dr. Fox’s reservation. Attached hereto as Exhibit 10 is a true and correct copy of correspondence between my office and Defendant’s counsel on the matter.

   

• Plaintiff agreed to stipulate to a trial and expert discovery continuance, and I signed the stipulation presented by Defendant’s counsel and returned it to Defendant. Attached hereto as Exhibit 11 is a true and correct copy of the stipulation.

   

• In spite of Defendant’s counsel’s prior representations, Defendant proceeded with the Motion to Exclude without notifying Plaintiff’s counsel. Apparently Defendant also did not file the stipulation Defendant’s counsel had requested and that I had signed for a trial and expert discovery continuance. The Court granted the Motion to Exclude because Plaintiff did not file an opposition, due to the mistaken belief that Defendant would honor the written agreement and take the hearing off calendar.

   

• Again, Plaintiff did not file an opposition because Defendant’s counsel agreed in writing that they were taking the Motion to Exclude off calendar and because the parties had agreed to allow further time to complete Dr. Fox’s deposition. The failure of Plaintiff to file an opposition to the Motion to Exclude was the result of the mistake, inadvertence, surprise, and/or excusable neglect of Plaintiff’s counsel, and was in no way the fault of Plaintiff herself.

(Declaration of Lindsay Burton, ¶¶ 15-17, 19-20.)

            In summary, Plaintiff argues that Defense Counsel communicated to Plaintiff that they would take the Motion to Exclude off-calendar.  Based on this alleged misrepresentation, Plaintiff believed she did not need to submit an opposition or attend the hearing.  Plaintiff thus did not submit an opposition or attend the hearing for the motion to exclude, and concludes this amounts to attorney mistake, inadvertence, or excusable neglect which resulted in the Court granting the subject motion to exclude.

            In opposition, Defendant argues Plaintiff’s reliance on the referenced stipulation as the reason why she failed to oppose the subjection motion to exclude is misplaced and insufficient to prove mistake, inadvertence, or excusable neglect. Defense counsel advances the following evidence in support of said proposition:

• A true and correct copy of the September 8, 2022 stipulation signed by Plaintiff Counsel and defense counsel which states, “. . . Plaintiff has completed the taking of all retained defense experts and Defendant has completed the taking of all retained experts of the Plaintiff, except Dr. Andrew Fox, which is scheduled for September 13, 2022. If this deposition proceeds, the motion to compel and/or exclude the doctor’s deposition, presently set on September 19, 2022, will go off calendar.”  (Declaration of Edye A. Hill, ¶ 7, Exhibit E.)

   

• A true and correct copy of the September 9, 2022 email wherein former defense counsel confirmed that the stipulation was conditional upon the production of Dr. Fox for deposition which states, “We cannot sign the stipulation unless the deposition of Dr. Fox proceeds on September 13, 2022 at 3 p.m. as stated therein.”  (Declaration of Edye A. Hill, ¶ 7, Exhibit N.)

Defendant further argues that Plaintiff’s reliance on the September 8, 2022 stipulation as justification for her failure to file an opposition to the motion to exclude is misplaced because the stipulation was not entered into until two days after the deadline to file a timely opposition had passed. 

Though Defendant establishes the language of the September 8, 2022 stipulation outlined the terms in which the motion to exclude would be withdrawn, the Court finds Defendant has failed to prove that Plaintiff’s Counsel was acting deliberately when she failed to submit an opposition to the motion to exclude.  As such, the Court finds Plaintiff has established that her failure to oppose Defendant’s motion to exclude Plaintiff’s expert witness was due to attorney mistake, inadvertence, and neglect.

Next, Defendant argues he will be severely prejudiced if the Court grants Plaintiff relief from the order to exclude Plaintiff’s expert witness, Dr. Andrew Fox, because Defendant will be required to expend additional and significant time and expense re-prosecuting the prior discovery motion, conducting the deposition of Dr. Fox, and conducting further work with Defendant’s experts.

The Court however finds that in light of the strong public policy of disposing cases on the merits, the circumstances weigh in favor of granting relief.  (See Austin v. Los Angeles Unified Sch. Dist. (2016) 244 Cal.App.4th 918, 928–929 [“[b]ecause the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.  Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits”].) 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion for relief from the Court’s order of September 19, 2022 excluding Plaintiff’s expert witness, Dr. Andrew Fox, and orders the September 19, 2022 order set aside. 

            Further, the Court orders Defendant’s “MOTION TO EXCLUDE EXPERT OPINION OF PLAINTIFF'S RETAINED EXPERT, ANDREW FOX, OR IN ALTERNATIVE, COMPEL THE DEPOSITION, SET THE COMPENSATION FEE AND CONTINUE THE TRIAL” filed on February 4, 2022 reset for hearing on February 8, 2023 at 1:30 PM in Department 32.  Plaintiff’s opposition, if any, to the motion shall be filed and served on or before January 25, 2023, and Defendant’s reply, if any, to the opposition shall be filed and served on or before February 1, 2023. 

            Further, on the Court’s own motion, the Court orders the Final Status Conference continued to February 28, 2023 at 10:00 AM in Department 32 and the Trial continued to March 13, 2023 at 8:30 AM in Department 32.  All discovery remains closed pending further order of the Court.   

            Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.