Judge: William A. Crowfoot, Case: 19STCV21958, Date: 2022-09-16 Tentative Ruling

Case Number: 19STCV21958    Hearing Date: September 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 21, 2019, Plaintiffs Silverio Hernandez (“Hernandez”) and Rigoberta M. Rodriguez (“Rodriguez”) filed this action against Defendants Erica Chen (“Erica”), Siulan Chen (“Siulan”), Mingyu Chen (“Mingyu”), Patrick Chen (“Patrick”) and Little Tokyo Pet Clinic (“LTPC”) for motor vehicle negligence and general negligence. Plaintiffs later amended the complaint to include Defendant Hye-Ok Chung (“Chung”).

On October 9, 2020, Plaintiffs filed the First Amended Complaint, adding a cause of action for intentional tort.  On June 22, 2021, Plaintiffs filed the Second Amended Complaint for motor vehicle negligence and negligent entrustment of a motor vehicle. The Court struck the SAC on August 23, 2021, as it was filed without leave of court or a stipulation between parties. 

On September 14, 2021, all defendants but LTPC filed an answer.

On June 29, 2022, Plaintiffs filed a Motion for Leave to File the Third Amended Complaint, which the Court granted on July 25, 2022 (the “July 25 Order”), but deemed the new pleading the Second Amended Complaint.  On August 29, 2022, Erica, Siulan, Mingyu, and Chen (collectively, “Defendants”) filed this motion for reconsideration of the July 25 Order or, in the alternative, for discretionary relief from attorney mistake. 

II.          LEGAL STANDARD

A.   Motion for Reconsideration

A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” (Code Civ. Proc. § 1008, subd. (a).)   The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration.  (Ibid.; see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)  The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown.  (Code Civ. Proc., § 1008, subd. (a).)  Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.”  (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].)  The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)  

B.   Motion for Relief Pursuant to CCP 473(b)

Section 473(b) of the Code of Civil Procedure states, 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.

The terms “mistake, inadvertence, surprise, and excusable neglect” which warrant 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]

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

III.        DISCUSSION

Defendants’ motion for reconsideration is DENIED as untimely.  This motion was filed on August 29, 2022, which is more than 10 days after July 26, 2022, when the notice of the July 25, 2022, Order was served on Defendants.  As admitted in defense counsel’s declaration, this motion should have been brought by August 8, 2022.  (Motion, Lieberthal Decl., ¶ 20.) 

Defendants’ motion for relief under section 473(b) is also DENIED.  Defendants contend that they did not file an opposition brief because their attorneys were not timely served with the motion and because they believed the motion was an improperly filed motion for reconsideration of a previous order issued on May 9, 2022, denying Plaintiffs’ motion for leave to file an amended complaint naming LTPC as a defendant (“May 9 Order”).  Neither of these arguments is availing. 

Plaintiffs served their motion on Defendants on June 29, 2022.  Based on a July 25, 2022, hearing date, Plaintiffs were supposed to serve the motion by June 28, 2022.  However, Defendants do not show how being served on one day later on June 29 instead of June 28 prejudiced their ability to file any opposition brief to oppose the motion.  By failing to file an opposition brief, Defendants took a gamble on whether Court would deny Plaintiffs’ motion; this mistake in judgment is not the kind of “mistake” that section 473(b) was intended to provide relief for. 

IV.         CONCLUSION

Defendants’ motion is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.