Judge: Robert B. Broadbelt, Case: PC058530, Date: 2022-07-25 Tentative Ruling

Case Number: PC058530    Hearing Date: July 25, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Sarah Hart

RESPONDING PARTIES:    Defendants Deborah Perlman and Perlman Law, Inc.

Motion to Vacate Judgment

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiff Sara Hart (“Plaintiff”) filed her original complaint in this action on May 18, 2018, against defendants Deborah Perlman and Perlman Law, Inc. (“Defendants”), alleging causes of action for (1) abuse of process; (2) legal malpractice; (3) breach of fiduciary duty; and (4) elder abuse—financial.  Plaintiff’s operative Second Amended Complaint (“SAC”) was filed on February 16, 2021, asserting three causes of action against Defendants for (1) legal malpractice, (2) violation of Business and Professions Code section 17200, and (3) implied equitable indemnity.

On May 5, 2022, the court granted Defendants’ motion for summary adjudication as to the first cause of action for legal malpractice and granted Defendants’ motion to strike Plaintiff’s second and third causes of action.

Judgment was entered on behalf of defendants Deborah Perlman and Perlman Law, Inc. and against plaintiff Sara Hart on May 24, 2022.

Plaintiff filed her “Notice of Intention to Move to Set Aside and vacate Judgment” on May 23, 22, and filed her “Request to Vacate Judgment Due to Incorrect or Erroneous Legal Basis (CCP 663)” on June 3, 2022.

MOTION TO VACATE JUDGMENT

            Plaintiff moves the court, pursuant to Code of Civil Procedure section 663, for an order vacating the judgment on the ground that the court erroneously ruled in its May 5, 2022 order that no triable issues of material fact exist as to the first cause of action for legal malpractice and therefore erroneously granted summary adjudication.

A motion to set aside and vacate a judgment and enter a different judgment under Code of Civil Procedure section 663 “is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.” (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.)  Section 663 provides that a judgment may be vacated on the ground of an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . .”  (Code Civ. Proc., § 663; see Glen Hill Farm, LLC v. California Horse Racing Board (2010) 189 Cal.App.4th 1296, 1302 [noting that the court cannot “in any way change any finding of fact”].)

The court denies Plaintiff’s motion for the following reasons.   

First, as noted by Defendants, section 663 provides that a judgment may “be set aside and vacated” by the court “and another and different judgment entered” upon a showing of an incorrect or erroneous legal basis for the decision.   (Code Civ. Proc., § 663, subd. (1).)  Plaintiff does not request the entry of another judgment, and instead  requests the court (1) vacate its order granting summary adjudication and (2) “allow this case to proceed.”  (Mot., p. 7:22-23.)  Such a request is not permitted by section 663.  (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203 [a motion under section 663 “does not lie to vacate a summary judgment and remit an action for trial”]; Doe v. Regents of University of California (2022) 80 Cal.App.5th 282, 292 [citing Forman v. Knapp Press].)  Plaintiff’s request to vacate the judgment and order granting summary adjudication and resetting the action for trial is an improper request for relief pursuant to section 663.

Second, the court finds that Plaintiff has not met her burden of establishing an incorrect or erroneous legal basis for the court’s judgment or May 5, 2022 order that is not consistent with or not supported by the facts.  Plaintiff has not established that the court’s finding that Plaintiff was required to challenge the underlying arbitration award no later than 100 days after the date of service of the arbitration award was incorrect or erroneous based on the evidence presented.  Even if the court were to consider Plaintiff’s arguments that she sought to dismiss the petition, as contended in her pending motion, Plaintiff (1) neither argued nor presented evidence in her opposition to the motion for summary adjudication on this ground and (2) alleged in the Second Amended Complaint that the basis for her legal malpractice claim was that Defendants “fail[ed] to set aside or vacate” the arbitration award, not that Defendants failed to seek or obtain dismissal of the petition.  (SAC, ¶ 24.)  The court therefore finds that Plaintiff has not demonstrated that the court drew “incorrect conclusions of law or render[ed] an erroneous judgment on the basis of uncontroverted evidence.”  (Simac Design, Inc., supra, 92 Cal.App.3d at p. 153.)

ORDER

The court denies plaintiff Sara Hart’s motion to vacate judgment.  (Code Civ. Proc., § 663.)

The court orders defendants Deborah Perlman and Perlman Law, Inc to give notice of this ruling.

IT IS SO ORDERED.

DATED:  July 25, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court