Judge Stephen P. Pfahler, Case Number: 22STCV22479, Date: 2024-11-06 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22STCV22479, Date: 2024-11-06 Tentative Ruling

Case Number: 22STCV22479 Hearing Date: November 6, 2024 Dept: 68

Dept. 68

Date: 11-6-24

Case 22STCV22479

Trial Date: 5-20-24

VACATE SUMMARY JUDGMENT

MOVING PARTY: Plaintiff, Albert Agdaian, pro per

RESPONDING PARTY: Defendant, Renaissance Maintenance Corp.

RELIEF REQUESTED

Motion to Vacate Order Granting Summary Judgment on the Complaint

SUMMARY OF ACTION

Plaintiff Albert Agdaian owned certain real property at 7373 Perigord Court, Tujunga. The common areas were managed by homeowner association Defendant Renaissance Maintenance Corp. In March 2022, sold the residence. Upon the close of escrow, $67,153 was paid to Defendant homeowner association for purported landscape repairs. Plaintiff contends no repairs were actually completed, and challenges the reasonableness of the amount.

On July 12, 2022, Plaintiff filed a complaint for Intentional Interference with Contract, Conversion, and Declaratory Relief. Defendant answered on November 4, 2022.

On April 18, 2024, the court granted the unopposed motion for summary judgment in favor of Defendant Renaissance Maintenance Corp. The court entered judgment on May 16, 2024.

RULING: Granted.

Request for Judicial Notice: Granted.

The court takes judicial notice of the judgments, and the existence of the pleadings, but cannot consider the content of any filed pleading for the truth of the matter asserted.

Plaintiff Albert Agdaian, in pro per, moves to vacate the order granting summary judgment. Plaintiff moves on grounds on mistake, inadvertence, or excusable neglect. Plaintiff maintains former counsel passed away on March 1, 2024. Plaintiff was late in discovering the existence of the motion and therefore serving any opposition. Defendant Renaissance Maintenance Corp. in opposition cites to the basis of the successful motion for summary judgment, the order deeming admissions admitted. The January 24, 2024, order was entered while Plaintiff’s counsel was still alive and representing Plaintiff. Defendant contends Plaintiff should present a malpractice claim against the estate of deceased counsel rather than seeking to bring Defendant back into the action following entry of judgment. The court electronic filing system shows no reply on file.

The motion was filed on July 24, 2022—97 days after the order granting summary judgment and 69 days after entry of judgment. Although not specifically identified, a party seeking relief from summary judgment may proceed under the guise of a motion for new trial on the basis of “[a]ccident or surprise, which ordinary prudence could not have guarded against.” (Code Civ. Proc., § 657(3).) The court in its discretion can consider such a basis for relief. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1610.) Nevertheless, such a motion was required less than 15 days following the entry of the judgment. (Code Civ. Proc., § 659.) Such a motion is therefore untimely.

As for the requested relief under Code of Civil Procedure section 473, “[b]oth 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.)

A motion for reconsideration must be filed “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

The motion was filed more than 10 days after the entry of the order granting summary judgment, and after entry of the order for judgment. The motion is therefore untimely. (Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545; Hartford Accident & Indemnity Co. v. Sequoia Ins. Co. (1989) 211 Cal.App.3d 1285, 1303.) The court therefore declines to consider the substantive arguments regarding the basis for relief under this statutory standard. The court therefore considers the relief under Code of Civil Procedure section 473, subdivision (b).

Plaintiff suggests the mandatory relief provision applies given the death of counsel. The argument finds support in that the granting of a summary judgment due, at least in part, to the lack of any filed opposition or appearance at the hearing as a result of death 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 finds the excuse, e.g. the failure to present any opposition due to the death of counsel, meets the standard for discretionary relief. Counsel presumably intended to oppose the motion on the substantive merits of the motion or at least adhere to ethical standards for withdrawal and notice to the client. The estate also failed to notify the court or otherwise appoint a trustee to administer any existing cases pending potential reassignment.

While the motion was granted at least in part on both the lack of opposition and the existence of the order deeming admissions admitted, the public policy standards for a trial on the merits supports relief from the summary judgment given the circumstances of an essentially, inadvertently unopposed motion. The court therefore grants the motion.

While Defendant would have the court reargue the central merits of the motion in the subject motion, the court adheres to procedure and resets the hearing for summary judgment. The court will set a new hearing date for the motion for summary judgment. Defendant will be ordered to serve notice of the new hearing date. Any opposition and reply will be due pursuant to statutory guidelines of the new hearing date.

Because relief is granted under Code of Civil Procedure section 473, and Plaintiff seeks to proceed on a case under the circumstances of the order deeming the admissions admitted, the court orders payment of $1,000 to Defense counsel in compensation for opposing the subject motion and time spent on any reply to the opposition to the motion for summary judgment.

Plaintiff to give notice to all parties.