Judge: Stephen Morgan, Case: 21AVCV00832, Date: 2023-08-08 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 21AVCV00832    Hearing Date: August 8, 2023    Dept: A14

Background

 

This is a medical malpractice action. Plaintiff Albert Martinez (“Plaintiff”) alleges that on or after December 28, 2020 he engaged for compensation the services of Defendant Palmdale Regional Medical Center (“Defendant”). Plaintiff alleges that (1) Defendant had a duty to care for and treat Plaintiff, (2) Plaintiff was hospitalized for an extended period of time for treatment of a virus, and (3) Defendant failed to protect Plaintiff from pressure injuries to deep tissues in his posterior, thus, falling below the standard of care. The pressure injuries to deep tissues in his posterior are alleged to be a “massive decubitus tissue injury involving bone, muscle, nerves, and connective tissue.” (Complaint ¶ 6.) Plaintiff alleges non-economic and economic damages.

 

On October 19, 2021, Plaintiff filed his Complaint alleging one cause of action for Medical Negligence.

 

On December 08, 2021, Defendant filed its Answer.

 

On August 26, 2022, Defendant filed a Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication. The exhibits were amended twice on August 30, 2022 and November 07, 2022. No Opposition was filed.

 

Prior to the hearing on November 17, 2022, Plaintiff’s counsel, Steven C. Gambardella (“Gambardella”), filed a Declaration in Support of Request to Continue Date of Hearing on the Motion for Summary Judgment.

 

On November 17, 2022, a hearing on the Motion for Summary Judgment was held. Counsels presented oral argument. The Court took the matter under submission and issued a ruling on the same day, granting the Motion for Summary Judgment.

 

On November 29, 2022, Judgment was signed.

 

On December 01, 2022, Defendant provided a Notice of Entry of Judgment or Order.

 

On June 12, 2023, Plaintiff filed this Motion to Vacate and Set Aside Judgment.

 

On June 26, 2023, Defendant filed its Opposition.

 

No Reply has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013 which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) Should a Reply be filed, it is now untimely.

 

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Legal Standard

 

Standard for Relief for Attorney Mistake, Inadvertence, and/or Excusable Neglect – Cal. Code Civ. Proc. § 473(b) provides two distinct provisions for relief: (1) mandatory and (2) discretionary.

 

Cal. Code Civ. Proc. § 473(b), concerning mandatory relief, provides in pertinent part, “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 … (2) resulting default judgment or dismissal entered against his or her client. . .” “Mandatory relief is available when an attorney submits an affidavit attesting to his or her mistake, inadvertence, surprise, or neglect resulting in a default or dismissal.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 996-97.) That is, the mandatory relief section under Cal. Code Civ. Proc. § 473(b) “ ‘expressly applies only to relief sought in defaults, default judgments or dismissals.’ ” (Id. at 1000 [internal citation to Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 320 omitted].)

 

The discretionary provision reads, in pertinent part: “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. 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.” (Cal. Code Civ. Proc. § 473(b).)

 

A mistake is a basis for relief under Cal. Code Civ. Proc. § 473 when by reason of the mistake a defendant failed to make a timely response.¿ Surprise occurs when a party is unexpectedly placed in a position to their injury without any negligence of their own. (Credit Managers Association of California v. National Independent Business Alliance¿(1984) 162 Cal.App.3d 1166, 1173;¿Davis v. Thayer¿(1980) 113 Cal.App.3d 892, 905.)¿Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default.¿(Id.) Under Cal. Code Civ. Proc. § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court's vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)¿ 

 

“ ‘ A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.’ ” (Burnete¿v. La Casa Dana Apartments¿(2007) 148 Cal.App.4th 1262, 1266.)¿

 

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Discussion

 

Application – Plaintiff seeks an order vacating and setting aside the judgment taken against him during the Motion for Summary Judgment. It also appears from Gambardella’s declaration that Plaintiff seeks to file an amended complaint. (See Decl. Gambardella ¶ 11.)

 

Plaintiff provides the affidavits of both Gambardella and himself. Gambardella presents that Defendant served its Motion for Summary Judgment August 26, 2022, which was set for hearing on November 17, 2022 and the due date for filing Plaintiff’s Opposition was November 03, 2022. (Decl. Gambardella ¶ 5.) Gambardella states that (1) he told defense experts that the medical records “were not that lengthy and the effort and time involved did not appear to be extensive[;]” however, he later realized more time was needed. (Id. at ¶¶ 4-5.) Gambardella presents that, upon realizing more time was needed, he telephoned defense counsel on November 04, 2022 to inform her that Plaintiff would be making an ex parte application to ask the Court for a continuance of the trial date so as to permit the hearing on the Defendant’s MSJ to a later date. (Id. at ¶ 5.) Gambardella presents that the Ex Parte Application was presented to the Court on the day of the hearing and, in the presentation, he attested to his excusable neglect, mistake, surprise, and inadvertence and was making the Ex Parte Application under Cal. Code Civ. Proc.§473c(h). (Id. at 6.) Gambardella further presents that: (1) he “prepared and served an Opposition to Defendant’s Motion for Summary Judgment following the dismissal and before [he] became aware of the Court’s ruling on the submitted matter” which did not include the expert declaration of Dr. Greengold (id. at 9); and (2) the case is meritorious and, “unless this judgment is vacated and set aside, Mr. Martinez’ has lost his day in court, save and except for a legal malpractice case” (id. at ¶ 10). Gambardella concludes his declaration with arguments that Defendant will not be prejudiced if judgment is set aside. (Id. at ¶¶ 12-13.)

 

Plaintiff argues that the Court has a mandatory duty to vacate and set aside the judgment taken against him under Cal. Code Civ. Proc.§ 473 and the Avila v. Chua (1997) 57 Cal.App.4th 860 holding.

 

The Court addresses presentations in Gambardella’s declaration that are concerning.

 

First, Gambardella presents that he filed an “Ex Parte Application.” The document filed by Gambardella was titled “DECLARATION STEVEN C. GAMBARDELLA, COUNSEL FOR PLAINTIFF, IN SUPPORT OF REQUEST TO CONTINUE DATE OF HEARING ON MOTION FOR SUMMARY JUDGMENT BY REASON OF EXCUSABLE NEGLECT, MISTAKE AND SURPRISE; EXHIBIT IN SUPPORT THEREOF.” (See Plaintiff’s 11/17/2023 filing.) Though the declaration contains the words “ex parte” within it, the purpose of the motion, as provided in the notice, was to “request to continue the date of the instant hearing to have the opportunity to present evidence on behalf of Plaintiff in support of an opposition to the Motion for Summary Judgment.” (Id.)  Gambardella also tried calling this document an “Opposition;” however, included in the filing was a statement that “Plaintiff’s meritorious Opposition has been delayed in filing by reason of excusable neglect, mistake surprise and inadvertence.” (Id. at 1:26-27.) Next, Cal. Rules of Court provides the following for ex parte applications: (1) “[a] party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice[]” (Cal. Rules of Cout, Rule 3.1203(a)); (2) when notice of an ex parte application is given, the person giving notice must state with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application and attempt to determine whether the opposing party will appear to oppose the application (id. at Rule 3.1204(a)); (3) An ex parte application must be accompanied by a declaration regarding notice stating the notice given (including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203) the applicant informed the opposing party where and when the application would be made, that the applicant in good faith attempted to inform the opposing party but was unable to do so, or that, for reasons specified, the applicant should not be required to inform the opposing party (id. at Rule 3.1204(b)); and (4) if notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain the exceptional circumstances that justify the shorter notice or, in an unlawful detainer, why the notice given is reasonable (id. at Rule 3.1204(c)). Gambardella filed his request to continue the Motion for Summary Judgment, and the accompanying notice, on November 17, 2022 at 7:59 a.m., only approximately half an hour before the hearing on the Motion for Summary Judgment. (See Plaintiff’s 11/17/2023 filing.) Had this been considered an “Ex Parte Application,” there was no explanation for why notice was provided later than 10:00 a.m. the court day before the ex parte appearance. Only now does Gambardella present to the Court that he contacted defense counsel on November 04, 2022 to inform her that he was moving “ex parte.”

 

Next, Gambardella presents that the filing on November 17, 2022 was made under Cal. Code Civ. Proc. § 437c(h). The Court, in its Statement of Decision on the Motion for Summary Judgment cited Cal. Code Civ. Proc. § 437(h) and emphasized the statute’s wording. For convenience, the Court does the same here:

 

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

 

Gambardella did not follow the time set out by statute. Further, the request for continuance, set in a declaration format, was not submitted with an opposition or via an ex parte application, discussed ante, as required by Code of Civil Procedure §437c(h); the declaration fails to demonstrate why the opinions of Ms. Le and Dr. Greengold were to be considered “facts essential to justify opposition” as required by Code of Civil Procedure §437c(h); and the declaration fails to explain why, in light of counsel’s knowledge of the Motion for Summary Judgment, the contemplated expert opinion could not have been produced by the time an opposition was due. That is, the declaration failed to establish that the lacking expert opinions could not have, with reasonable diligence, been completed prior to the deadline for the opposition papers. The declaration supports the Court’s interpretation as Gabardella presents in the notice that Plaintiff’s opposition was delayed “by reason of excusable neglect, mistake surprise and inadvertence[,]” but fails to describe any excusable neglect, mistake surprise and inadvertence made on his part. (See 11/17/2023 Decl. Gambardella [quote taken from notice; however, content of declaration states only “expert opinions were delayed by the necessity to review the voluminous records. . .”].) The Court notes that “ ‘[c]onduct falling below the professional standard of care, . . ., is not excusable.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 [internal citation omitted].)

 

The Court next turns to Plaintiff’s motion. Cal. Code Civ. Proc. § 473 imposes a statutory time in which counsel must bring a motion to 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. The timing is “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (See Cal. Code Civ. Proc. § 473(b).) This timing is imposed both in the mandatory and discretionary relief provisions. (See ibid.) It is heavily emphasized and repeated three times throughout subsection (b). (See ibid.) The Motion for Summary Judgment was granted on November 17, 2022 and Judgment was entered on November 29, 2022. Six months from November 29, 2022 is May 29, 2023. Plaintiff filed this Motion to Vacate and Set Aside Judgment on June 12, 2023. Plaintiff’s motion is untimely. Had the Court used the date of the filed notice of judgment, December 01, 2022, Plaintiff’s motion would remain untimely as six months from December 01, 2022 is June 01, 2023.

 

The Court also notes, for counsel’s awareness, that the case relied upon in Plaintiff’s moving papers, Avila v. Chua (1997) 57 Cal.App.4th 860, has been expressly overruled by The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993:

 

Having the benefit of reviewing English and its progeny, we disapprove of our prior opinions in Avila v. Chua, supra, 57 Cal.App.4th 860 and In re Marriage of Hock & Gordon-Hock, supra, 80 Cal.App.4th 1438. As summarized succinctly by our colleague, now Retired Associate Justice Richard J. McAdams, in Huh, supra, 158 Cal.App.4th at page 1417: “We agree with the cogent analysis in English, which is faithful to legislative intent and consistent with established principles of statutory construction. As the English court said: ‘It is not an appellate court's task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations “analogous” to those the statute explicitly addresses. Rather, an appellate court's task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves.’ (English, supra, 94 Cal.App.4th at p. 144.) Where the statutory language is unambiguous, its plain meaning controls. (Id. at p. 143; see Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919 [129 Cal. Rptr. 2d 811, 62 P.3d 54].) Here, the statutory language is unequivocal. ‘As expressly worded, section 473(b)[’ s mandatory provision] applies only to relief sought in response to defaults, default judgments or dismissals.’ (Vandermoon v. Sanwong, supra, 142 Cal.App.4th at p. 320, italics added.) Summary judgments are neither defaults, nor default judgments, nor dismissals. (English, at p. 133.) The explicit statutory language of section 473(b) thus ‘provides no basis for extending the mandatory provision’ to such judgments. (Prieto v. Loyola Marymount University, supra, 132 Cal.App.4th at p. 297.) In the words of Justice Epstein, ‘to read the mandatory provision of … section 473 to apply whenever a party loses his or her day in court due to attorney error goes far beyond anything the Legislature has done.’ (Yeap[ v. Leake], supra, 60 Cal.App.4th at p. 605 (dis. opn. of Epstein, J.).)” We agree with Retired Associate Justice McAdams's cogent analysis and disapprove of our mandatory relief discussions in Avila and Hock.

 

(The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000-01.)

 

Defendant’s Opposition echoes the Court’s decision. Further, the Opposition provides more insight as to certain matters brought up by Gambardella: (1) Gambardella did not contact defense counsel until November 04, 2022, the day after Plaintiff’s Opposition was due (Decl. Jonquil L. Whitehead ¶ 9); and (2) due to issues with filing a 5,391-page medical records, defense counsel filed records it cited to with the Court and provided complete medical records upon Plaintiff’s discovery requests on September 13, 2022 and October 13, 2022 (id., ¶¶ 4-8). The Court notes that on November 07, 2022 an Errata was filed related to the medical records lodgment which included a declaration from the custodian of records only. (See id., ¶ 10; see also court filings.)

 

Accordingly, Plaintiff’s Motion to Vacate and Set Aside Judgment is DENIED.

 

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Conclusion

 

Plaintiff Albert Martinez’s Motion to Vacate and Set Aside Judgment Entered Following Grant of Defendant Palmdale Regional Medical Center’s Motion for Summary Judgment is DENIED.