Judge: Walter P. Schwarm, Case: 30-2017-00949627, Date: 2022-12-20 Tentative Ruling

Plaintiff’s (Teri Schilz) Motion for an Order Vacating Judgment and to Restore the Matter to the Civil Active List Based Upon Code of Civil Procedure §473(B), filed on 8-30-30 under ROA No. 362, is DENIED.

Code of Civil Procedure section 473, subdivision (b), states, “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. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) 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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

Ron Burns Constructions Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1413 (disapproved on other grounds in Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 845) states, “ ‘[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citations.]’ [Citation.] Hence, ‘  “ ‘[t]he provisions of section 473 of the Code of Civil Procedure are to be liberally construed. . . .’ [Citation.]” [Citation.] . . .  “[A]ny doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” [Citation.]’ (Maynard v. Brandon (2005) 36 Cal.4th 364, 371–372, 30 Cal.Rptr.3d 558, 114 P.3d 795.) ‘Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.]’ [Citation.]” [¶]  “ ‘A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. [Citations.] However, 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.’ ”  [Citations.]’  (Elston v. City of Turlock, supra, 38 Cal.3d at p. 233, 211 Cal.Rptr. 416, 695 P.2d 713.) ‘[A] trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ [Citation.]”

Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206, states, in relevant part, “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.]’ [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. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.] . . . .’ [Citation.]”

Hopkins & Carley v. Gens, (2011) 200 Cal. App. 4th 1401, 1413–1414 (Hopkins) provide, “The law does not entitle a party to proceed experimentally without counsel and then turn back the clock if the experiment yields an adverse result. One who voluntarily represents himself ‘is not, for that reason, entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute “mistake, inadvertence, surprise or excusable neglect” as those terms are used in section 473.’ [Citation.]  Rather, ‘when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.’ [Citation.]   Here as in the case just cited, when Gens claims to have made a mistake of law, ‘what he really means is not that he made a mistake of law when he attempted to put on his case at trial, but that he made  a mistake in judgment when he chose to act as his own attorney.’ [Citation.] The ‘naïveté’ of lay litigants in ‘rely [ing] on themselves to protect their substantial legal interests’ does not afford a ground for relief from adverse results. [Citation.]”

The Motion states, “As plaintiff in pro per, Ms. Schilz continued with executing timely discovery and several court filings in the case. However, she had great difficulty when it came time to prepare an opposition to Defendant’s Motion for Summary Judgment. The Superior Court’s Self-Help Phone Line was closed due to Covid-19 restrictions. She was unable to find any online resources to assist in preparing the opposition, which is a technical and often voluminous packet. She was also unable to personally visit the courthouse due to her permanent disability. . . . [¶] Plaintiff’s failure to file a Motion in Opposition to Defendant’s Motion for Summary Judgment was purely unintentional. . . . Moreover, it can be attributed to her disability which causes intermittent cognitive impairment. . . .” (Motion; 3:8-16.)  Plaintiff’s declaration states, “. . . However, I had great difficulty when preparing a Motion in Opposition to Defendant’s Motion For Summary Judgment. The Superior Court’s Self-Help Phone Line was closed due to Covid-19 restrictions. I was unable to find any online resources to assist me in preparing my opposition. I believe there was self-help facilities at the courthouse, however I was unable to personally visit the courthouse due to my permanent disability. See SSA Medical Disability Determination Notice attached hereto as EXHIBIT ‘A’.” (Schilz Decl., ¶ 1; Uppercase and emphasis in declaration.)  Based on Plaintiff’s declaration, it appears that Plaintiff seeks the requested relief based on excusable neglect.

Plaintiff commenced this case on 10-13-17. (Complaint filed on 10-13-17 under ROA No. 2.)  Plaintiff has litigated this action as a self-represented litigant starting on 7-26-18. (Substitution of Attorney filed on 7-26-18 under ROA No. 72.)  On 6-8-20, Attorney—Joseph C. Rosenblit began representing Plaintiff. (Substitution of Attorney filed on 6-8-20 under ROA No. 203.) On 11-23-21, the court granted Attorney—Joseph C. Rosenblit’s Motion to be Relieved as Counsel. (11-23-21 Minute Order.)  The Proof of Service regarding the court’s signed order granting the Motion to be Relieved reflects that Attorney—Joseph C. Rosenblit served Plaintiff with the signed order on 12-3-21. (Proof of Service filed on 12-3-21 under ROA No. 301.) The Motion for Summary Judgment was filed on 3-3-22, and served on Plaintiff on 3-3-22. (Motion for Summary Judgment filed on 3-3-22 under ROA No. 313.)  The heard date on the Motion for Summary Judgment was set on 7-19-22.  Between 12-3-21 and 7-19-22, Plaintiff had ample time to retain an attorney.

Under Hopkins, Plaintiff’s failure to properly represent herself does not constitute excusable neglect.  The court has already vacated the dismissal entered on 9-27-19 under ROA No. 187. (9-27-19 and 10-27-20 Minute Orders.  The court notes that this Motion is Plaintiff’s second request under Code of Civil Procedure section 473, subdivision (b), based on inadvertence, mistake, surprise, or excusable neglect.  Therefore, the court exercises its discretion and finds that Plaintiff has not sufficiently demonstrated inadvertence, mistake, surprise, or excusable neglect. 

Based on the above, the court DENIES Plaintiff’s (Teri Schilz) Motion for an Order Vacating Judgment and to Restore the Matter to the Civil Active List Based Upon Code of Civil Procedure §473(B), filed on 8-30-30 under ROA No. 362.

Defendant (Universal Properties and Management, Inc.) is to give notice.