Judge Randolph M. Hammock, Case BC717849 2022-08-11 Tentative Ruling

Plaintiff Andre Bautista filed this action against Defendant Geoffrey Alan Harris Lichtman for Breach of Contract, Fraud, Intentional and Negligent Infliction of Emotional Distress, and “Embezzlement with Grand Larceny by Conversion.” Plaintiff alleges Defendant violated the parties’ partnership agreement to operate their company, Artist Advantage Group Academy LLC.

In pertinent part, section 473, subdivision (b) provides: “The 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.... 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.”

“Section 473, subdivision (b) provides for two distinct types of relief. Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.)

Defendant invokes the mandatory relief provision of section 473(b). Under this section, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.) As explained below, this section does not afford Defendant the relief he seeks.

Defendant’s attorney, Joseph Kellener, submitted a Declaration with the motion. He attests that he was retained to try the case on April 21, 2022. (Kellener Decl. ¶ 3.) Defendant informed him that trial was set for May 16, 2022. (Id. ¶ 4.) Counsel claims to have mistakenly calendared the trial for June 16, 2022, instead of May 16, 2022. (Id. ¶ 6.) Counsel states: When I met with my client to have the substitution of attorney document signed, I reviewed my file and told him that trial was on June 16, 2022, which was a mistake because of my calendar error.” (Id. ¶ 8.) As a result of that error, “the defendant nor myself showed up on the set trial date before this court.” (Id. ¶ 9.)

In Vandermoon, a case with facts similar to this one, neither the defendants nor their attorney appeared for trial. (Id. at 318.) Trial was conducted in their absence, and the court entered judgment in the plaintiff’s favor. The court issued an amended judgment stating that “the matter proceeded to trial in defendants' absence and, after plaintiffs presented witnesses and documentary evidence, the court found plaintiffs to have met their burden of proof and therefore entered judgment in their favor.” (Id. at 318-19.) Defendants learned of the trial once they received notice of an involuntary lien a month later. (Id. at 319.) They blamed their attorney for the error and retained new representation. The new attorney filed a motion for relief from default and default judgment under section 473(b), and requested mandatory relief “due to the fault of counsel.” (Id. at 319.) The trial court denied the motion, finding the mandatory provision did not apply because the judgment was not a default or default judgment within the meaning section 473(b).

The Court of Appeal affirmed. The Court explained that “as expressly worded, section 473(b) applies only to relief sought in response to defaults, default judgments or dismissals.” (Id. at 320.) “And a ‘default’ means only a defendant's failure to answer a complaint, and a ‘default judgment’ means only a judgment entered after the defendant has failed to answer and the defendant's default has been entered.” (Id. at 321.) The Court expressly declined to “expand the limited meaning of the word ‘default,’ and rejected anything outside the narrow construction of the language as contrary to what the Legislature intended.” (Id. at 321.) Thus, the Court held that “because the amended judgment was neither a default nor a default judgment for purposes of section 473(b), the mandatory provision of that section does not apply.” (Id.; See also Noceti v. Whorton (2014) 224 Cal. App. 4th 1062, 1067 [where plaintiffs’ failed to appear at trial due to attorney’s calendaring error, mandatory relief did not apply because uncontested trial was not equivalent of a “dismissal”].)

Here, just like in Vandermoon, the instant case proceeded to an uncontested trial, where Plaintiff testified and presented evidence. The court expressly found that Defendant had filed an answer and that “notice [was] proper for trial.” (See Minute Order 05/16/ 2022.) The court then entered judgment in Plaintiff’s favor in the amount of $154,000.00. (Id.) Thus, the judgment was not a default, default judgment, or dismissal, and the mandatory provision does not apply.

Defendant does not appear to address the discretionary provision of section 473(b), either in his Notice or Memorandum. “Specification of issues is no less necessary when a motion invokes section 473 than when a motion is made pursuant to any other statute.” (Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1125 [trial court was not required to consider mandatory relief under section 473(b) when party’s notice and motion discussed only discretionary relief]. ) “As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citation.] An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.” (Id.) Be that as it may, this court will address “discretionary relief” for purposes of discussion.

“Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.” (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.) The test of whether neglect was excusable is whether “ ‘a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citations.]” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

First, this court notes that although Mr. Kellner states he had not been “retained to try the case” until April 21, 2022, he had been involved in some capacity well before that. Indeed, it appears Mr. Kellener was the attorney listed on Defendant’s opposition to the motion for summary adjudication, filed November 30, 2020. (See Opp. 11/30/2020.) It is unclear what to make of Counsel’s “Substitution of Attorney” filed the same day as the instant motion.

Second, this court notes that both Defendant and his counsel, Mr. Kellener, received mailed notice that Plaintiff had appeared for trial on January 11, 2022, and that the trial date had been continued to May 16, 2022. (See Minute Order 01/11/22; Certificate of Mailing 01/11/22.) This was also the second time the trial was continued due Defendant’s failure to appear. (See 08/03/2021.) Nonetheless, even if Counsel is excused for missing the notice of the May trial date and for relying on Defendant and mistakenly calendaring an incorrect date, it appears still that Defendant himself was well aware of the May trial date. It was Defendant, after all, who supposedly relayed the May date to his counsel. With any reasonable diligence, it should have become clear before the May trial date there had been an error or miscommunication. Put simply, Defendant had ample opportunities to defendant this matter, but repeatedly failed to do so. After Defendant’s numerous continuances, delays, and failure to participate in meaningful discovery, Plaintiff would be unfairly prejudiced if relief is granted. This court cannot find that a reasonably prudent person under the same or similar circumstances might have made the same error as both Defendant and his counsel.

This court recognizes that “reviewing courts tend to favor orders granting relief under section 473(b) in order to effectuate a policy favoring trial on the merits over dispositions by default. This policy, however, cannot invariably prevail over competing policies, including those that ‘favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.’ [Citation.] While ‘courts are liberal in relieving parties of defaults caused by inadvertence or excusable neglect,’ they ‘do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs. There must be rules and regulations by which rights are determined and under which judgments become final.’ ” (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1415.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.