2017-00210896-CL-UM

Svyatoslav Perebikovskiy vs. Alliance United Insurance Co.

Nature of Proceeding: Motion to Set Aside Judgment

Filed By: Perbikovskiy, Svyatoslav

Claimant’s motion to set aside the judgment is denied.

The instant motion is the latest in a lengthy history of procedural maneuvering arising out of an uninsured motorist accident by which Claimant claims property and personal injury. Respondent Alliance United attempted to investigate the accident, including taking Claimant’s recorded statement or Statement Under Oath; Respondent’s efforts met with repeated delay tactics by Claimant and have been entirely unsuccessful. Claimant, through his personal representative, demanded Uninsured Motorist Arbitration and Alliance sent the matter to outside counsel for handling.

Alliance’s counsel attempted (unsuccessfully) to set Claimant’s deposition for well over a year. Every time, including with a terminating sanctions motion pending, Claimant purported to be out of state in various locations working. Claimant’s representative further demanded, among other things, that Claimant be personally served with a deposition subpoena but refused to reveal Claimant’s location. Respondent ultimately filed a motion to compel Claimant’s deposition.

On May 16, 2017, this Court granted Alliance’s motion to compel Claimant’s deposition, specifically ordering him to appear for deposition no later than June 30, 2017. Claimant agreed to submit to deposition on June 30, and Alliance issued a deposition notice to memorialize the deposition scheduling.

On June 6, 2017, however, Claimant informed Respondent that he would not appear for deposition as ordered by this Court. For reasons unknown, Claimant insisted that he would appear only if Alliance’s CEO, David Mandel, were made available to be deposed the same day. Indeed, as promised, Claimant failed to appear for deposition on June 30.

Claimant then filed a motion for reconsideration of the Court’s order compelling him to appear for deposition. This Court denied that motion on several grounds on July 31, 2017. Claimant then filed a Notice of Appeal regarding the motion for reconsideration on August 3, 2017.

On August 24, 2017, Respondent filed a motion for terminating sanctions. The Court’s tentative ruling regarding that motion gave Claimant one final opportunity to submit to deposition or the case would be dismissed. Following oral arguments on the motion, however, Judge Cadei (now retired) concluded that, based on Claimant’s ongoing history of dilatory conduct, the motion for terminating sanctions should be granted and the case dismissed. Claimant filed a motion for reconsideration of the dismissal on October 10, 2017. On October 20, 2017, the Court entered judgment based on the ruling. Thereafter, following the hearing on Claimant’s motion for reconsideration, the Court took the matter under submission and issued its final ruling, in which it dropped the motion for lack of jurisdiction based on in ruling on motion for reconsideration, citing as authorityAPRI Ins. Co. v. Superior Court(1999) 76 Cal.App.4th176, 181; Passavanti v. Williams(1990) 225 Cal.App.3d 1602;Safeco Ins. Co. v. Architectural Facades Unlimited, Inc.(2005) 134 Cal.App.4th1477, 1482; andRamon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237.

Claimant first argues that the precedent cited above -APRI, Pasavanti, Safeco,and Ramon- has been overruled due to the 2011 amendments of Code of Civil Procedure section 1008 is without merit. As Respondent correctly point out, the legislative history of section 1008, reflects that the only change to section 1008 in 2011 was the addition

of subparagraph (g), which provides that orders denying a motion for reconsideration are not separately appealable. There is no legal authority that indicates that the addition of subparagraph (g) in any way overruled or mooted the case law the Court cited in dropping Claimant’s motion for reconsideration. Moreover, section 1008 applies to requests for reconsideration, which is not the basis of Claimant’s motion here.

Claimant also contends that Code of Civil Procedure section 473 warrants relief from the judgment entered. The Court disagrees. Claimant has failed to show any “surprise, inadvertence, excusable neglect or mistake” as defined by section 473 sufficient to set aside the judgment.An honest mistake of law is a valid ground for relief under section 473 when the legal problem posed “‘is complex and debatable.'” ( McCormick v. Board of Supervisors(1988) 198 Cal. App. 3d 352, 360;Brochtrup v. INTEP(1987) 190 Cal. App. 3d 323, 329.) The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconception and the justifiability of the failure to determine the correct law. (McCormick, at 360; Brochtrup, at 329.) “Where the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice, general ignorance of the law or lack of knowledge of the rules, or unjustifiable negligence in the discovery or research of the law, laxness or indifference[,] normally relief will be denied.” (Fidelity Fed. Sav. & Loan Assn. v. Long(1959) 175 Cal. App. 2d 149, 154.) There is nothing in section 473 to suggest it “was intended to be a catch-all remedy for every case of poor judgment … which results in dismissal.” (Huens v. Tatum(1997) 52 Cal.App.4th 259, 264.)

Here, at most, Claimant argues that he was incorrect in believing that his appeal of the Court’s denial of his motion for reconsideration in July 2017 stayed discovery in this matter, and therefore he was free to ignore the Court’s orders of May 16, 2017 (requiring him to submit to deposition) and July 31, 2017 (denying motion for reconsideration of same). In effect, Claimant argues that he believed the law was something other than what it is. As the Court previously explained in its order of September 27, 2017: “[T]he Court does not believe that Claimant has filed a valid appeal. While Claimant has invoked an appellate court’s jurisdiction in filing the Notice of Appeal, the Notice pertains to an order (regarding Claimant’s Motion for Reconsideration) that is neither a final judgment nor appealable in and of itself. (See CCP section 1008(g).) At most, the Notice of Appeal is arguably an interlocutory writ awaiting ruling but it does not divest this Court from taking appropriate action regarding a pending discovery issue.” In other words, Claimant either exercised poor judgment and ignored what the law requires (in which case section 473 is inapplicable), or he misinterpreted the law because he is appearingin propria persona.The fact that Claimant is representing himself is of no import: the rules of civil procedure apply equally to parties represented by counsel and those who forgo attorney representation. (See County of Orange v. Smith(2005) 132 Cal.App.4gh 1434, 1444.) Simply, Claimant’s appeal pertains to an order that is neither appealable nor a final judgment and therefore proceedings in this Court were never stayed despite him filing an imperfect appeal. Claimant refused to appear for deposition, which ultimately resulted in the Court granting a motion for terminating sanctions. Any ruling by this court to reverse that decision, by now permitting Claimant some sort of exceptional treatment in light of hispro perstatus despite his actions, would only lead to “a quagmire in the trial court, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

In sum, the Court finds no basis to set aside the judgment under section 473.

Accordingly, Claimant’s motion is denied.