2009-00036948-CU-PN

Hammer Lane RV & Mini-Storage LP vs. Jack S Johal

Nature of Proceeding: Motion for Relief from Order Granting Summary Adjudication of Punitive

Filed By: Alves, Suzanne M.

Plaintiffs motion for relief pursuant to CCP § 473(b) is DENIED.

This case encompasses Plaintiffs’ allegations that Defendant law firm Hanson Bridgett
LLP (“HB”) was aware of and/or ratified the allegedly wrongful conduct of Co-
Defendant and former HB attorney Jack S. Johal (“Johal”). The parties’ sharpened this
issue down to a dispute whether HB knew about or ratified Johal’s billing in a particular
case. On November 27, 2013, this court granted HB’s request for summary
adjudication of Plaintiffs’ punitive damages claim against it. In granting summary
adjudication, the court rejected Plaintiffs’ contention that the evidence presented a
triable issue as to HB’s knowledge and ratification. Plaintiffs now seek to attack the
court’s ruling after-the-fact by arguing that HB withheld documents demonstrating HB’s
knowledge and ratification. Based on this argument, and pursuant to CCP § 473(b),
Plaintiffs move for relief from the order granting summary adjudication and have
lodged a proposed supplemental opposition to the motion for summary
judgment/summary adjudication (the “MSJ”).

Preliminarily, the court notes that the only question currently before it is whether
Plaintiffs are entitled to relief under CCP § 473(b). As a result, the court expresses no
opinion about the probative value of the supplemental evidence that Plaintiffs seek to
introduce to revive their opposition to HB’s MSJ.

That being said, the court denies the motion because Plaintiffs have failed to persuade
the court. Even if the court were to accept Plaintiffs’ characterization of discovery that
preceded Plaintiffs’ opposition to the MSJ, and thus were to accept Plaintiffs’ argument that HB withheld documents bearing upon its knowledge and ratification, there would
still be no dispute that Plaintiffs were aware of the existence of these documents
before they filed their opposition. Notwithstanding their knowledge, they failed to move
for a continuance pursuant CCP § 437c(h). That subdivision reads:

(h) If it appears from the affidavits submitted in opposition to a motion for
summary judgment or summary adjudication or both that facts essential
to justify opposition may exist but cannot, for reasons stated, then be
presented, the court shall deny the motion, or order a continuance to
permit affidavits to be obtained or discovery to be had or may make any
other order as may be just. The application to continue the motion to
obtain necessary discovery may also be made by ex parte motion at any
time on or before the date the opposition response to the motion is due.
(Italics added.)

In their moving papers, Plaintiffs gloss over their right to apply ex parte for a
continuance by asserting that they lacked time to bring such an application. They
nonetheless admit that they learned about the existence of the documents in question
by August 12, 2013, which was 11 days before their opposition to the MSJ was due.
And Plaintiffs do not contend that, at the time of hearing, they raised the documents’
existence so that the court could consider whether to grant a continuance at that time.

The court finds that Plaintiffs and their counsel made a tactical decision to oppose to
the MSJ based on the evidence in their possession at that time and notwithstanding
their knowledge of the existence of the documents currently at issue. Thus, there was
no inadvertence, mistake, excusable neglect or surprise supporting relief under CCP §
473(b). Plaintiffs’ characterization of HB’s conduct as “fraudulent” does not alter the
court’s conclusion.

The motion is denied.

The court need not rule and does not rule on the parties’ evidentiary objections. The
court has only relied on admissible evidence in making its ruling.

Plaintiffs’ requests for judicial notice of court documents are GRANTED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.