Judge Stephen P. Pfahler, Case 20STCV38847 2023-02-10 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 20STCV38847, Date: 2023-02-10 Tentative Ruling

Case Number: 20STCV38847 Hearing Date: February 10, 2023 Dept: F49

Dept. F-49

Date: 2-10-23

Case #20STCV38847

Trial Date: 6-5-23

RELIEF

MOVING PARTY: Plaintiff, Cinda Mickols

RESPONDING PARTIES: Defendant, Imad Abumeri, M.D.

RELIEF REQUESTED

Motion for Relief from the Order Granting Summary Judgment

SUMMARY OF ACTION

On October 10, 2019, Plaintiff Cinda Mikols presented to the emergency room, and underwent a right sided lateral interbody fusion and segmental fixation at L4-L5 operation peformed by Defendant Dr. Mark Liker. Plaintiff’s post surgical condition, due to both post-operative infections and developing hypoxemia. On October 14, 2019 Plaintiff was diagnosed with a number of conditions, including but not limited to, septic shock and renal failure, which the diagnosing physician, Imad Abumeri, found unrelated to surgery and therefore required no further intervention. On October 20, 2019, Plaintiff underwent a second operation for a right hemi-colectomy with ileostome placement.

On October 9, 2020, Plaintiff filed a complaint for Medical Malpractice and Medical Negligence. The action was transferred from Department 28 to Department 49 on January 14, 2022.

RULING: Granted.

Plaintiff Cinda Mickols moves for relief from the October 4, 2022, order granting summary judgment in favor of defendant Imad Abumeri, M.D. Plaintiff moves under Code of Civil Procedure section 473, subdivision (b) on grounds of inadvertent error and excusable mistake by both the retained expert and counsel. Defendant in opposition challenges the request for mandatory relief. Defendant challenges any discretionary relief. Plaintiff in reply emphasizes the standard for relief due to the mistake of counsel. Plaintiff in reply reiterates the clerical nature of the error, and additionally challenges the case law cited in the opposition.

The motion comes after the August 24, 2022, hearing whereby Plaintiff failed to attach the purported declaration of Hillel Baldwin, M.D. The court in its discretion continued the hearing to October 4, 2022 in order to allow Plaintiff an opportunity to present the declaration for consideration. At the time of the reset hearing date, the court granted the motion for summary judgment, due to Plaintiff’s failure to submit any admissible counter expert declaration in a motion requiring expert testimony. The written judgment was entered on October 25, 2022.

A party may file a motion for relief from summary judgment under Code of Civil Procedure section 473, subdivision (b). “Both a motion for new trial under section 1008 and a motion for relief from the judgment under section 473 are appropriate means for seeking trial court relief from an order granting summary judgment or adjudication.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The instant motion was timely filed on November 8, 2022.

Plaintiff contends the mandatory relief provision applies given the declaration of fault by counsel. The argument finds support in that the granting of a summary judgment due to the error of counsel constitutes a dismissal without an opportunity to present the merits of the claim. (Avila v. Chua (1997) 57 Cal.App.4th 860, 868 disapproved of by The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993.) The Urban Wildlands Group, Inc. case specifically limited the mandatory provisions to default judgments and dismissal, and declined to more expansive definition provided to summary judgment orders. Both holdings were issued by the Second Appellate District, with the later case taking precedent. (Id. at p. 1000.) Other courts are also in accord with The Urban Wildlands Group, Inc. holding. (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 297; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228–229; Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1090-1091.)

The court therefore declines to utilize the mandatory relief standard, and considers the motion under the discretionary relief provisions. “While the motion lies within the sound discretion of the trial court, ‘the trial court's discretion is not unlimited and must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ (Citation.) The law strongly favors trial and disposition on the merits. Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief. We will more carefully scrutinize an order denying relief than one which permits a trial on the merits.” (Mink v. Superior Court , supra, 2 Cal.App.4th at p. 1343; Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at pp. 229-230; Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC, supra, 219 Cal.App.4th at pp. 1092-1093.)

“In determining whether the attorney's mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person might have made the same mistake under the same or similar circumstances. (Citation.). Thus, discretionary relief is available only from attorney error that is ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’

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“The terms mistake, inadvertence, surprise, and excusable neglect warranting relief under section 473(b) are defined as follows: ‘Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....’ (Citation.) Further, ‘[t]he term “surprise,” as used in section 473, refers to some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ (Citation.) Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.” (Citation.)

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“Generally speaking, the trial court's ruling on a discretionary motion for relief is reviewed for an abuse of discretion. (Citation.) Since ‘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.’(Citation.) For that reason, ‘a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Citation.) (Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at pp. 229–230.)

The court reviews the declarations of counsel and Dr. Baldwin. Counsel admits to the mistake, and the court finds the excuse meets the standard for discretionary relief. Counsel clearly intended to oppose the motion on the substantive merits of the motion. The motion was not granted on the merits of the supporting expert declaration, or other tactical decisions in the prosecution of the case, but effectively as a result of a failure to correctly format the counter declaration. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276–278; Cochran v. Linn (1984) 159 Cal.App.3d 245, 251–252.) In other words, the court is not presented with a motion seeking to reargue the central merits of the motion, but consideration of evidence offered towards support of the opposition and directly addressing the merits of the action. The public policy standards for a trial on the merits support relief from the summary judgment given the circumstances of an essentially, inadvertently unopposed motion. The court therefore grants the motion for relief.

The court reiterates that the lack of a proper verification was the basis for granting of summary judgment, and the case law allowing for a grant on this basis. Nevertheless, the subject motion involves the standard for relief. The court therefore distinguishes the argument in the opposition regarding the prior verification defect, and in no way finds it as a bar to the instant motion. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 611.)

The continued motion for reconsideration set for March 22, 2023 is off-calendar. No further briefing is required on the motion. The court will allow for a reset hearing of the prior motion for summary judgment, if requested by Dr. Abumeri. The court will consider the submitted motion and the revised declaration of Dr. Baldwin in any reset hearing, but will otherwise not allow any supplemental briefs raising new arguments.

Plaintiff to give notice to all parties.