Judge: Randy Rhodes, Case: 21CHCV00160, Date: 2023-01-17 Tentative Ruling
Case Number: 21CHCV00160 Hearing Date: January 17, 2023 Dept: F51
Dept. F-51
Date: 1/17/23
Case #21CHCV00160
MOTION TO VACATE JUDGMENT
Motion Filed: 7/21/22
MOVING PARTIES: Plaintiff Mark Todd Hong (“Plaintiff”)
RESPONDING PARTY: Defendant Rocoso 26, LLC (“Responding Defendant”)
NOTICE: OK
RELIEF REQUESTED: Reconsideration of the Court’s 3/30/22 grant of Defendant’s motion for summary judgment, entered on 5/26/22.
TENTATIVE RULING: The motion is granted. Plaintiff is ordered to separately file his opposition papers to Responding Defendant’s motion for summary judgement, which are attached to the motion, within 10 days of this hearing. Responding Defendant’s request for attorney fees is denied.
BACKGROUND
On 3/7/19, Plaintiff purchased a townhouse in Northridge, California, for investment purposes. (Compl., ¶ 2). However, defendants allegedly failed to disclose that renting the property was prohibited for the first two years of ownership and restricted thereafter. (Compl., ¶¶ 1, 26.)
On 3/4/21, Plaintiff filed his complaint against defendants Rocoso 26, LLC; Northridge Park Townhome Owners Association, Inc., and LB Property Management, Inc., asserting causes of action for (1) Violation of Civil Code § 4525 et seq., (2) Negligent Misrepresentation, (3) Negligent Misrepresentation, (4) Intentional Misrepresentation, and (5) Intentional Misrepresentation.
On 1/14/22, Responding Defendant filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication. The motion included a Proof of Service, indicating that Defendant served the moving papers on Plaintiff at email address marktoddhong@gmail.com. However, Plaintiff did not file any opposition to the motion. Therefore, on 3/30/22, the Court granted Responding Defendant’s motion for summary judgment. On 5/26/22, the Court entered judgment against Plaintiff.
On 7/21/22, Plaintiff filed the instant motion seeking to set aside the order granting Responding Defendant’s motion for summary judgment, arguing he never received notice of the motion. On 10/13/22, Responding Defendant filed its opposition. On 1/10/23, Plaintiff filed his reply.
ANALYSIS
“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 … 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).) “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)
Mistake, Inadvertence, Surprise, or Neglect
Here, Plaintiff, in pro per at the time, declares that he never received a copy of Defendant’s motion in time to oppose it. He attests to the following facts. Given the cordial and accommodating nature of his working relationship with defense counsel, he expected defense counsel to “informally notify [him] directly” if Responding Defendant had filed a motion. (7/21/22 Decl. of Mark Todd Hong, ¶ 12.) However, defense counsel never informed Plaintiff even though the parties attended mediation when the motion was pending and on 3/29/22, agreed to extend trial and all motion cut-off dates. (Id., ¶¶ 14–24; Ex. C.) On 7/13/22, Plaintiff checked the docket in this case for the rescheduled trial date only to discover, for the first time, that Responding Defendant had filed a motion for summary judgment and the Court had granted it. (Id., ¶ 25.) Immediately upon making this discovery, Plaintiff emailed defense counsel for clarification. (Id., ¶ 26.) Defense counsel replied attaching copies showing, inter alia, that his firm’s employee emailed copies of the moving papers to Plaintiff’s Gmail (email address) on 1/14/22 and 1/15/22. (Id., ¶ 26.) However, Plaintiff never received any of those emails and has never found any documents related to this case that were left at his house. (Id., ¶¶ 28-30.) Plaintiff believes that the emails were delivered to his spam folder which are automatically deleted by Gmail after 30 days. (Id., ¶ 31.) Had he been aware of Responding Defendant’s motion, he would have opposed it and appeared at the hearing. (Id., ¶ 32.)
Plaintiff’s declaration shows that he failed to check his spam folder in his email folder and the court docket, relying on defense counsel to informally notify him directly regarding any pending motions or filings. (Id., ¶ 12.) Plaintiff argues that his failure to diligently apprise himself of the action constitutes mistake, inadvertence, and neglect. (Pl.’s Mot., 5:1–6:22.) Responding Defendant argues in opposition that Plaintiff’s conduct is inexcusable as conduct that a reasonably prudent person would not have repeated under the same or similar circumstances. (Def.’s Opp. 8:4–25.) Plaintiff argues in response that it is entirely reasonable for a party to rely on proper notice, which he declares under penalty of perjury that he never received. (Pl.’s Reply, 4:12–14.)
Based on the foregoing, the Court finds that Plaintiff’s failure to oppose Responding Defendant’s motion for summary judgment was a result of mistake, inadvertence, and neglect, and therefore grants Plaintiff’s motion.
Pleading Requirements
“Application for this 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, and shall be made 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).) “The plain object of the provision [requiring a copy of the answer or other pleading] was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.” (County of Los Angeles v. Lewis (1918) 179 Cal. 398, 400.)
Here, Plaintiff did not attach a proposed opposition to Responding Defendant’s motion to summary judgment to the instant motion. Therefore, Responding Defendant argues that “Plaintiff’s application for relief fails as a matter of law, because Plaintiff’s Motion fails to substantially comply with the pleading requirements set forth in CCP § 473(b).” (Def.’s Opp., 9:24–26.) The parties each assert that Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918 may offer the Court discretion to grant Plaintiff’s requested relief despite his failure to attach a proposed opposition to Responding Defendant’s motion for summary judgment, as required by Code of Civil Procedure section 473, subdivision (b). However, the parties disagree as to the applicability of Austin to the instant case.
In Austin, although the plaintiff failed to strictly comply with the statute’s requirement that her application for relief be accompanied by a copy of the proposed responsive pleading, the Court of Appeal held that substantial compliance with the statute was sufficient, and concluded that the plaintiff had satisfied this requirement where any attached opposition memorandum would have proffered “essentially the same factual contentions and legal arguments as … in her various filings requesting relief from the judgment.” (244 Cal.App.4th 918 at 933.) The plaintiff in Austin was a self-represented litigant requesting relief from the granting of defendants’ motion for summary judgment based in part on the discovery of new evidence. In reversing, the Court of Appeal ruled in favor of the plaintiff “in light of the public policy favoring determination of actions on their merits and the concomitant requirement that ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.’” (Ibid.)
Responding Defendant argues that Austin is distinguishable here because “Plaintiff’s Motion fails to provide any application (or any kind of proposed application) to continue the hearing date or gather more discovery.” (Def.’s Opp., 9:20–21.) Plaintiff argues in reply that the Court should apply the same reasoning as that in Austin, and find that “the failure to file proposed opposition papers is overcome if the motion itself contains the same factual allegations and legal arguments that would be found in the opposition papers.” (Pl.’s Reply 5:15–17.)
Plaintiff argues that he substantially complied with the statutory pleading requirement “by including the same arguments in the Motion to Set Aside and Reply that would have been contained in a proposed opposition to the Motion for Summary Judgment.” (Id., 7:5–7.) Moreover, Plaintiff has attached to his reply papers: (1) the proposed opposition to Responding Defendant’s motion for summary judgment; (2) a proposed response to Responding Defendant’s separate statement; (3) a request for judicial notice; and (4) a declaration in support of the opposition. (Exs. A–D to Decl. of Hillary Arrow Booth.)
Based on the foregoing, the Court finds that Plaintiff has substantially complied with the attached-pleading requirement of Code of Civil Procedure section 473, subdivision (b). The Court notes that “the law respects form less than substance.” (Civ. Code § 3528.) Additionally, the public policy of California generally favors adjudicating cases on the merits. (Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 235; Hernandez v. Superior Court¿(2004) 115 Cal.App.4th 1242, 1246.) As such, the Court exercises its discretion under Austin to grant Plaintiff relief from the Court’s 3/30/22 Order granting Responding Defendant’s motion for summary judgment.
Attorney Fees
Responding Defendant requests that the Court condition the grant of the instant motion on Plaintiff paying Responding Defendant’s attorney fees and costs to reimburse for unnecessary costs incurred. (Def.’s Opp., 11:1–20.) Responding Defendant argues that “this would not be a ‘penalty’, but merely reimbursement to Rocoso to recover the fees and costs it should not have incurred had Plaintiff brought a timely opposition to the Motion for Summary Judgment and prevailed.” (Id., 11:16–18.) Plaintiff argues in opposition that an award of attorney fees would in fact be punitive to Plaintiff, particularly where there is currently a pending motion for attorney fees before the Court relating to the successful summary judgment motion. (Pl.’s Reply, 8:16–22.)
The Court finds that awarding attorney fees to Responding Defendant before considering Plaintiff’s opposition papers would be premature. Accordingly, the Court declines to award Responding Defendant attorney fees and costs incurred in bringing its motion for summary judgment at this time.
Timeliness
Under Code of Civil Procedure section 1005, subdivision (b), “all reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Code Civ. Proc. § 1005, subd. (b).) Here, the deadline for Plaintiff to file and serve his reply was 1/9/23, five court days before the instant hearing. Plaintiff filed and served his opposing papers on 1/10/23, one court day late.
Notwithstanding the foregoing, the Court thus exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely filed reply, especially absent a showing that Responding Defendant was prejudiced in any way. However, Plaintiff is advised to take note of the filing deadlines under the statute, as future filings made past the statutory deadlines may result in the Court declining to consider the late-filed papers at the hearing.¿
CONCLUSION
The motion is granted. Plaintiff is ordered to separately file his opposition papers to Responding Defendant’s motion for summary judgement, which are attached to the motion, within 10 days of this hearing. Responding Defendant’s request for attorney fees is denied.