Case Number: BC652693 Hearing Date: May 30, 2018 Dept: 34

SUBJECT: Motion to set aside ruling and reopen discovery

Moving Party: Plaintiffs Nicole Perez and Gabriel Perez

Resp. Party: Defendant Cedars-Sinai Medical Center

The motion is DENIED. The Court declines to award attorney fees to defendant.

BACKGROUND:

Plaintiffs commenced this action on 03/03/17 against defendants for: (1) medical negligence; and (2) wrongful death. Plaintiffs allege that decedent Noah Perez died as a result of negligent medical treatment provided by defendants.

On 03/22/18, the Court granted defendant Cedars-Sinai Medical Center’s unopposed motion for summary judgment.

ANALYSIS:

Plaintiff moves to set aside the Court’s 03/22/18 ruling granting defendant’s motion for summary judgment. (See Notice of Motion, p. 2:2-5.)

Relevant Law

Under Code of Civil Procedure section 473, subd. (b), “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition to the discretionary relief provision, section 473 also provides for mandatory relief “whenever an application for relief is made no more than six months after entry of judgment . . . and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473, subd. (b).) “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) The court has discretion to determine whether defendants have demonstrated “a satisfactory excuse for not responding to the original action in a timely manner.” (Cruz v. Fagor America, Inc. (2007) 146 Cal. App. 4th 488, 504.)

Discussion

Plaintiffs move to set aside the Court’s ruling granting defendant’s motion for summary judgment on the ground that they have been unable to actively participate in the litigation of this case due to their counsel’s health. (See generally, Motion, p. 3:5-24.) Plaintiff’s counsel declares that shortly after filing this action, she became “unable to aggressively litigate this case because she had not recovered from a serious health issues which required hospitalization” in January 2017. (Motion, p. 3:5-9; Lucero Decl. ¶ 3.) Then, in June 2017, plaintiff’s counsel suffered a minor heart attack and was hospitalized again. (See Motion, p. 3:15-17; Lucero Decl. ¶ 4.) In February 2018 — when plaintiff’s counsel would have been working on the opposition to defendant’s motion for summary judgment — she suffered two additional health emergences and it “took counsel several weeks to recover and return to her practice.” (See Motion, p. 3:18-25; Lucero Decl., ¶ 6.) Counsel declares that she is now “fully recovered and returned to my practice full time.” (Id. at ¶ 9.)

As a result of their attorney’s health emergencies, plaintiffs argue that the ruling should be set aside because:

“Counsel was unable to prepare an Opposition to the Motion for Summary Judgment, take Defendant’s expert witness depositions, or take Defendant’s Person Most Knowledgeable (PMK) deposition. It was the plan to obtain additional information from Cedar’s PMK, file a motion to file a first amended complaint and add new defendants to the action who counsel believes are also culpable for the minor’s death.” (Motion, p. 4:2-7.)

Plaintiff’s counsel declares that the “failure to oppose the motion for summary judgment was the result of my mistake or excusable neglect.” (Lucero Decl., ¶ 12.)

Plaintiff’s motion must be denied for multiple reasons. As defendant correctly points out in its opposition, plaintiff’s motion fails to show that they are entitled to either discretionary or mandatory relief under section 473. (See generally, Opposition, p. 4:22-9:25.)

Plaintiff’s reliance on Yeap v. Leake (1997) 60 Cal.App.4th 591, and Avila v. Chua (1997) 57 Cal.App.4th 860 [see Motion, p. 7:3-27] is misplaced as more recent decisions hold that mandatory relief is not available to vacate the Court’s ruling on a motion for summary judgment. In English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, the court explained that “the determination of whether the mandatory provision of section 473(b) applies to summary judgment is a task of statutory construction” and concluded:

“Turning to the language of section 473(b), we find nothing in the statute to suggest the Legislature intended the mandatory provision of the statute to apply to summary judgments. On its face, the mandatory provision requires the court, if certain prerequisites are met, to vacate a ‘default,’ a ‘default judgment,’ or a ‘dismissal.’ As we shall explain, a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a dismissal.” (Id. at p. 143.)

While discretionary relief may be available to vacate a ruling on a motion for summary judgment, it is not available here. In Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, the court explained:

“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. [Citation.] 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.’ [Citations.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citations.] Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is therefore not excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” (Id. at p. 258.)

There has been a repeated pattern by Plaintiffs’ counsel of failing to adequately represent her clients. On December 1, 2017, the Court stated in its ruling:

“This is the fifth discovery motion filed by one of the defendants and heard by this Court within the past 10 days; plaintiff has not opposed any of these motions. The court has granted all of the motions.

“At the hearing on November 21, 2017, plaintiff’s counsel indicated that she had only recently recovered from certain medical issues, but now has a new attorney and two new assistants helping her. At that hearing – on a motion to deem Requests for Admission admitted – Plaintiffs’ counsel admitted that she had made a mistake; she thought the responses had been served and only discovered the previous day that the responses had not been sent. Counsel stated that the responses were at that very moment sitting on her desk. Yet when the Court asked plaintiffs’ counsel why she hadn’t immediately messengered the responses to defense counsel when she discovered her mistake – which would have mooted the motion to have the Requests for Admission deemed admitted – counsel had no response. In fact plaintiffs’ counsel admitted that she was unaware that serving the responses prior to the motion being heard would have mooted the motion. (See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395–396 [“woe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you’re out’ as applied to civil procedure.”])

“Despite the fact that plaintiffs’ counsel told the court that she now has an associate and two assistants helping her, counsel still has not filed an opposition to today’s motions. As the Court indicated on November 21, 2017, the Court continues to be concerned about plaintiffs’ lack of response and perhaps even the quality of the representation that plaintiffs are receiving in this wrongful death case.” (12/1/2017 Minute Order.)

On December 18, 2017, the Court reiterated its concern:

“These are the sixth and seventh discovery motions filed by one of the defendants and heard by this Court within the past 3 weeks; plaintiff has not opposed any of these motions. The court has granted all of the motions.

“Despite the fact that plaintiffs’ counsel told the court that she now has an associate and two assistants helping her, counsel still has not filed an opposition to today’s motions. In particular, the Court finds it astounding that plaintiff has not opposed defendant’s motion for terminating sanctions.

“As the Court indicated on both November 21 and December 1, 2017, the Court is increasingly be concerned about plaintiffs’ lack of response and the quality of the representation that plaintiffs are receiving in this wrongful death case.”

[¶]

“At the hearing on December 20, 2017, Plaintiff’s counsel, Ms. Lucero, did not appear in person, but appeared at the hearing via CourtCall. Ms. Lucero stated that she had not read the Court’s tentative decision, despite the fact that it had been posted almost two weeks previously. The Court reminded Ms. Lucero that when she appeared at a hearing on Nov. 21, 2017, the Court had orally informed her that it always posted it tentative ruling at least 48 hours prior to the hearings. (In addition, the Court’s Trial Orders, which are given to all counsel at the first hearing, state that the court posts its tentative rulings at least 48 hours prior to the scheduled hearing. See Dept. 34 Trial Orders, ¶ IX.) Ms. Lucero never stated why she had not read the Court’s tentative decision.” (12/18/2017 Minute Order.)

Finally, when the Court granted Defendant’s Motion for Summary Judgment, it stated:

“On December 18, 2017, the Court noted that plaintiff’s counsel had not opposed 7 consecutive discovery motions – all of which the Court had granted. The Court stated that it could not understand why plaintiff had not even opposed defendant’s motion for terminating sanctions. (See Minute Order, 12/18/2017.)

“On November 21, 2017, December 1, 2017, and December 18, 2017, the Court noted that it was “increasingly . . . concerned about plaintiffs’ lack of response and the quality of the representation that plaintiffs are receiving in this wrongful death case.”

“On March 22, 2018, the Court granted Defendant Cedars-Sinai’s Motion for Summary Judgment. This Motion for Summary Judgment was not opposed.

“Plaintiff’s opposition to this motion was untimely filed on April 12, 2018. All oppositions to motions must be filed 9 court days prior to the hearing. (CCP §1005(a).) Today’s hearing is scheduled for April 17, 2018; therefore to be timely, the opposition needed to have been filed by April 4, 2018. The Court only received the courtesy copy of plaintiff’s opposition on April 16, 2018. Nonetheless, the Court has considered this untimely opposition.

“As the Court stated on 3/22/18, ‘The Court’s concern about the “quality of the representation that plaintiffs are receiving in this wrongful death case” has not abated.’ ” (3/22/2018 Minute Order.)

This Court has no reason to dispute Plaintiffs counsel’s assertions that she has been ill. Nonetheless, counsel’s management of this case has fallen below the professional standard of care. If counsel was too ill to prosecute this case, she should have found another attorney to take over the case so that plaintiffs would not be deprived of their day in court.

Finally, the motion must be denied because granting it would be an exercise in futility. Plaintiffs argue that the motion for summary judgment was granted “[b]ecause Plaintiff’s counsel failed to file an opposition.” (See Motion, p. 4:8-12.) While it is true that plaintiffs failed to timely file an opposition, this is not the reason that the Court granted the Motion for Summary Judgment.

First, as the Court indicated in its ruling on the Motion for Summary Judgment, the Court did consider plaintiffs’ untimely opposition.

But fatal to plaintiffs’ position, the Court granted summary judgment because “plaintiffs have admitted facts which conclusively show that they cannot establish an element of either of their causes of action.” (See Minute Order of 03/22/18.) Four months previously, on 11/21/17, the Court granted defendant’s motion to deem requests for admission admitted. (See Minute Order of 11/21/17.) Plaintiffs never moved for relief from that ruling and the admissions formed the basis of defendant’s subsequent motion for summary judgment. As a result, even if the Court were to vacate the ruling on the motion for summary judgment, that ruling would have no effect on plaintiffs’ admissions. Defendant would just re-file its Motion for Summary Judgment and the Court would be compelled to again grant the motion. “The law neither does nor requires idle acts.” (Civ. Code §3532.)

Plaintiff also seeks to reopen discovery. The Court denies that request for two reasons. Because the motion to vacate the ruling on defendant’s Motion for Summary Judgment has been denied, the issue is moot. Further, trial in this matter is scheduled for September 4, 2018. Discovery is still ongoing; had the Court granted plaintiffs’ motion to vacate, the motion to reopen discovery would be unnecessary.

Defendant seeks to recover $2,600.00 in attorney fees for being forced to oppose “this baseless motion.” (See Opposition, p. 12:3-22.) However, defendant cites no authority in support of such an award. Further, the denial of this motion is a severe enough sanction to impose on plaintiffs.

The motion is DENIED. The Court declines to award attorney fees to defendant.