Judge: Wesley L. Hsu, Case: 22PSCV00670, Date: 2023-03-14 Tentative Ruling

Case Number: 22PSCV00670    Hearing Date: March 14, 2023    Dept: L

Plaintiff Karen Harbaugh’s Motion For Relief From Orders Made On Defendant’s Demurrer And Motion To Strike is DENIED.

Background

This case pertains to the certain alleged representations made by the buyer’s agent in the purchase of real property. Plaintiff Karen Harbaugh (“Plaintiff”) alleges the following against Defendant Darin Hubbard (“Defendant”): On July 30, 2019, Plaintiff and Defendant entered into a residential broker agreement (“Agreement”) for the purchase of real property. Prior to purchasing the property, Defendant made representations that the HVAC system had no issues, and that plumbing inspection was unnecessary. After escrow closed, Plaintiff learned that the property’s plumbing and piping was found to require extensive repairs and that the HVAC system was unusable. Defendant received a commission of $8,760.00 from Plaintiff.

On June 30, 2022, Plaintiff filed suit against Defendant and Doe Defendants for:

1.      Fraud and Intentional Deceit,

2.      Negligent Misrepresentation,

3.      Breach of Contract,

4.      Constructive Fraud,

5.      Broker Liability to Purchaser for Intentional Nondisclosure of Material Facts,

6.      Broker Liability to Prospective Purchaser for Failure to Inspect and Disclose,

7.      Principal’s Breach of the Duty of Good Faith and Fair Dealing,

8.      Breach of Implied Covenant of Good Faith and Fair Dealing, and

9.      Breach of Fiduciary Duty

On September 22, 2022, the court sustained Defendant’s demurrer without leave to amend because the action was barred by res judicata.

On November 10, 2022, Plaintiff filed the instant motion.

On February 10, 2023, Defendant filed his opposition to the motion.

On February 16, 2023, Plaintiff filed its reply.

Legal Standard

Plaintiff brings forth the motion pursuant to the discretionary relief provision under California Code of Civil Procedure (“CCP”) section 473 subdivision (b). (Motion p. 4:23-27.)

In turn, CCP section 473 subdivision (b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”[1] (Code Civ. Proc.,¿§ 473, subd. (b).)¿The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure § 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] 

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) 

Discussion

Plaintiff seeks relief from the court’s order dismissing Plaintiff’s action because Defendant sent notice of the demurrer and the demurrer to Plaintiff’s non-calendaring email such that they went unnoticed for weeks. As stated in more detail by Plaintiff’s Counsel Marc Grossman (“Counsel Grossman”), “Had there been a phone call, written correspondence, ordinary mail service, or electronic service to either of the acceptable email addressed, Plaintiff would have been able to Oppose the motions.” (Grossman Decl., ¶6.)

As noted by Defendant, however, while Plaintiff brings forth the motion on the grounds of excusable neglect (Opp. p. 8), the analysis set forth does not mention any neglect on part of Plaintiff’s Counsel. Rather, the motion inculpates Defense Counsel for Plaintiff’s inability to oppose the demurrer due to purported improper service.

Of import, the parties engaged in meet and confer efforts prior to Defendant filing its demurrer. In fact, despite an opposition by Plaintiff, the court’s tentative ruling on the demurrer addressed what it thought would be Plaintiff’s predominant argument based on the meet and confer email(s). Furthermore, Counsel Wood “admitted he received the motion but had not acted upon it . . . .” (See Declaration of Marc Grossman ¶5) (emphasis added). Yet, despite the attorneys’ communications and Plaintiff’s awareness of a demurrer—Plaintiff’s counsel attempts to impose an additional requirement on Defense Counsel that Defense Counsel should have inquired why an opposition was not filed. But there is no such requirement that a moving party need inquire why no opposition has been filed nor a requirement that the moving party file a notice of non-opposition.

Lastly, as to the issue of notice, the proof of service attached to the demurrer indicates that the demurrer was sent to (i) the email address Plaintiff’s Counsel used to engage in meet and confer efforts and (ii) the email address as stated on the pleading. Accordingly, for Plaintiff’s Counsel to further impose additional requirements on Defense Counsel to consult the state bar website for an appropriate address is wholly unpersuasive.

Conclusion

Based on the foregoing, the motion is DENIED.