Defendants Faryab and Farzinpour’s “Motion for Relief from any Attorney Fault” and/or for Leave to File a Demurrer and Motion to Strike that Defendants have already filed is DENIED.

There is no basis for granting this motion under CCP §473(b). First and foremost, with the Dec. 2, 2011 Order on the prior demurrers now vacated there is no adverse ruling or judgment from which Defendants Faryab and Farzinpour can seek “relief” under CCP §473(b).

Furthermore there is no basis here for granting a §473(b) motion under the mandatory relief provision of the statute. By its express terms the mandatory relief provision applies only to defaults, default judgments and dismissals, none of which occurred here. See English v. IKON Business Solutions (2001) 94 Cal App 4th 130, 143-144 (noting that statutory term “default” refers only to a default entered by the clerk or the court when a defendant fails to answer a complaint; that “default judgment” is defined as a judgment entered after the defendant has failed to answer the complaint and the defendant’s default has been entered, and; that “dismissal” is defined as the withdrawal of an application for relief by the party seeking such relief, or the removal of the application by a court.) See also Leader v. Health Industries of America (2001) 89 Cal App 4th 603 (mandatory relief held inapplicable to motion for leave to file amended complaint); Huh v. Wang (2007) 158 Cal App 4th 1406, 1417 (6th Dist.) (“We agree with the cogent analysis in English, which is faithful to legislative intent and consistent with established principles of statutory construction. . . . In the words of Justice Epstein, ‘to read the mandatory provision of . . . section 473 to apply whenever a party loses his or her day in court due to attorney error goes far beyond anything the Legislature has done.’”)

There is also no basis here to grant such a motion under the discretionary relief provision based on attorney mistake or neglect. “’A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.’ In determining whether the attorney’s mistake or inadvertence was excusable, ‘the court inquires whether a ‘reasonably prudent person under the same or similar circumstances’ might have made the same error.’’ In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly attributable to the client, i.e., mistakes anyone could have made.’ ‘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.’” Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal 4th 249, 258, internal citations omitted, emphasis in original. See also Huh v. Wang, supra, at 1423, citing Zamora (“Neglect is excusable only if a reasonably prudent person in similar circumstances might have made the same error.”)

It is not a reasonable mistake, error, or act of neglect to have filed a demurrer more than 250 days after service of the operative pleading under the apparent assumption that the Court would automatically exercise its discretion to consider the untimely filing. Defendants’ filing of a SLAPP had no effect on the deadlines applicable to filing demurrers or motions to strike. CCP §425.16(g) expressly stays all “discovery proceedings” on the filing of a SLAPP motion. The filing of a SLAPP motion cannot be reasonably understood as staying or tolling any other deadlines or proceedings.

“The duty of competence imposed on attorneys includes the obligation to know ‘‘those plain and elementary principles of law which are commonly known by well informed attorneys,’’ and also ‘‘to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.’’ Where the law is doubtful or uncertain, an attorney is obligated ‘‘to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.’” Hopkins & Carley v. Gens (2011) 200 Cal App 4th 1401, 1414, internal citations omitted (6th Dist., denying relief under CCP §473(b)).

It is “commonly known by well informed attorneys” that the proper course of action for a party wishing to challenge the face of a pleading after the time for a demurrer has expired (and it is now more than three years since the operative SAC was filed and served on Defendants) is to file a motion for judgment on the pleadings pursuant to CCP §438. “Reasonable research” would certainly reveal the existence of CCP §438.

CCP §473(b) also requires that an “application for relief” be accompanied by “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect.” Mr. Gieleghem’s Declaration, asserting only that the prior demurrer order was an error by the Court and cautioning the Court against repeating it, does not satisfy this requirement. A declaration that clearly does not admit fault cannot support a §473(b) motion. See Cowan v. Krayzman (2011) 196 Cal App 4th 907, 915 (trial court may deny §473(b) motion if it finds that the attorney’s declaration of fault is not credible.)

As a motion “to enlarge the time for answer or demurrer” under CCP §473(a) the motion is also DENIED. Defendants are not seeking prior permission from the Court “to enlarge the time to answer or demurrer” as they already filed the demurrer and motion to strike on the very same day they filed their motion for relief. Furthermore no good cause is shown for granting such a request as a motion for judgment on the pleadings is available to Defendants. To the extent Defendants seek an advisory opinion on the outcome of the demurrer and motion to strike they have already filed this is not a proper request under CCP §473(a).

The Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declaration of Defense Counsel Gieleghem offered in support of the motion to strike.

The Demurrer to the SAC is OVERRULED as untimely. See CCP §430.40(a). The Court sees no good cause to exercise its discretion to consider an untimely demurrer filed approximately three years after service of the operative pleading, particularly given the availability at all times during this litigation after the time to file a timely demurrer had expired of a motion for judgment on the pleadings. This ruling is without prejudice to Defendants’ ability to file a properly noticed motion for judgment on the pleadings pursuant to CCP §438.

The Motion to Strike portions of the SAC as “improper” is DENIED as untimely. See CCP §435(b)(1). Furthermore, as this Court (Hon. McKenney) previously ruled on September 14, 2011 and as affirmed by the Court of Appeal on October 23, 2013 Defendants have failed to show from the face of the pleading that the allegations of the SAC are “improper” because they arise from Defendants’ privileged or protected activity.

Defendants are directed to file an answer to the SAC within 10 days of this Order. See Rule of Court 3.1320(g) and (j).

Defendants’ Motion to Tax Costs is DENIED.