Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. S-1500-CV-263526 William D. Palmer, Judge.
LeBeau-Thelen and Dennis R. Thelen for Defendants and Appellants.
No appearance by Plaintiffs and Respondents.
OPINION
HILL, P.J.
Defendants in this medical malpractice case filed a motion for summary judgment. Plaintiffs learned two days before their opposition was due that the expert they thought they had retained had been retained by defendants and would not provide a declaration to support their opposition. They submitted their opposition six days late; defendants objected. On the day before the hearing of the motion, plaintiffs filed an ex parte application to continue the hearing. The trial court denied the ex parte application, struck the opposition as untimely, and granted summary judgment. About six months after judgment was entered, plaintiffs filed a motion to set aside the order granting summary judgment and denying the ex parte application. The court granted the motion, setting aside the order granting summary judgment, the order denying the ex parte application for a continuance, and the judgment. Defendants appeal. Plaintiffs have not filed a respondents’ brief. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2009, defendants filed a motion for summary judgment, on the grounds defendants’ care and treatment of plaintiff, Jeanne Lamb, met the applicable standard of care and no act or omission of defendants was a legal cause of the injuries or damages claimed by plaintiffs. The hearing of the motion was set for August 5, 2009, so plaintiffs’ opposition was due on July 22, 2009. Plaintiffs’ opposition was submitted for filing on July 28, 2009, and was supported by the declaration of Dr. Gene Parks, who opined that the medical care rendered by Dr. Ynostroza to Jeanne Lamb fell below the applicable standard of care and was a substantial factor in causing her harm.
On July 30, 2009, defendants filed an objection to, and motion to strike, the late-filed opposition. On August 4, 2009, plaintiffs filed an ex parte application to continue the hearing of the motion for summary judgment, or for an order shortening time for the hearing of a motion for continuance. In support, plaintiffs submitted the declarations of plaintiffs’ counsel, John Contos, and two of his employees. These declarations indicated that, in January 2008, Contos’s paralegal, Gail Langer, contacted Dr. William Frumovitz and discussed the case with him to obtain a preliminary review. She spoke with him about the case again in August and December 2008. She then contacted him during the week of July 13, 2009, in anticipation of the designation of expert witnesses that was to be served on July 20, 2009, to notify him that medical records and retainer would be forwarded to him for his review; they were to be delivered at about 3:30 p.m. on Monday, July 20. On July 20, plaintiffs served a designation of experts naming Frumovitz as plaintiffs’ expert. At 4:37 p.m. on July 20, Dr. Frumovitz called Langer and advised that he could not act as plaintiffs’ expert because of a conflict with the defense which he would not explain. On July 21, plaintiffs received defendants’ designation of experts, which named Dr. Frumovitz as defendants’ expert. Because of the impending trial date, defendants would not agree to a continuance of the summary judgment motion or to additional time for plaintiffs to designate another expert. On July 22, plaintiffs delivered medical records to Dr. Parks, who agreed to act as plaintiffs’ expert; on July 24, Dr. Parks faxed to plaintiffs’ counsel a declaration to be used in opposing the summary judgment motion. Plaintiffs’ opposition to the motion was filed and served on July 28.
Defense counsel represented he never received plaintiffs’ designation of expert witnesses.
The court heard both the ex parte application and the motion for summary judgment on August 5, 2009. It denied the ex parte application, finding no good cause for granting a continuance and a lack of diligence by plaintiffs’ counsel; the court noted the length of time plaintiffs had to prepare and present their opposition to the motion for summary judgment, the history of the case, which involved seven motions by defendants to obtain discovery from plaintiffs, and plaintiffs’ failure to file the ex parte application on or before July 22, despite Contos’s knowledge before that date of the expert designation problem. In the absence of timely opposition raising a triable issue of fact, the court granted the motion for summary judgment. Judgment was entered on August 14, 2009.
On February 11, 2010, plaintiffs filed a “Motion to set aside orders granting defendants’ motion for summary judgment and denying plaintiffs’ ex parte application to continue hearing.” The moving papers discussed the same facts presented in support of the ex parte application, concerning plaintiffs’ discovery that both parties had designated the same expert. The motion sought mandatory and discretionary relief under Code of Civil Procedure section 473, subdivision (b), from plaintiffs’ failure to file timely opposition to the summary judgment motion. Plaintiffs also argued the hearing of the motion should have been continued as requested in their ex parte application. The motion was supported by the declaration of Contos, with the previous declarations of Langer and Barbara Spencer, Contos’s secretary, attached as exhibits. Along with plaintiffs’ reply papers, Contos submitted a declaration attempting to explain the delay in bringing the motion to set aside.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On April 19, 2010, the court granted the motion and set aside the denial of the ex parte application, the order granting the motion for summary judgment, and the subsequently entered judgment. It ordered that the hearing on the motion for summary judgment be rescheduled. Defendants appeal from the April 19, 2010, order.
DISCUSSION
I. Motion for Reconsideration
Defendants contend plaintiffs’ motion to set aside the trial court’s orders was, in reality, a motion for reconsideration, which should have been denied because it did not comply with the requirements for such a motion. Under specified circumstances, section 1008 permits a party to request reconsideration of an order issued at another party’s request, or to renew the party’s own application for an order that was previously denied. (§ 1008, subds. (a), (b).) The party must advise the court of the previous motion and its outcome, and present “new or different facts, circumstances, or law” supporting the motion. (Ibid.) The moving party must also provide a satisfactory explanation for the failure to produce the “new or different facts, circumstances, or law” at an earlier time. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
Section 1008 provides, in pertinent part: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” “(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”
Initially we note that the statute addresses “orders” and applications for “orders.” An “order” is a “direction of a court or judge, made or entered in writing, and not included in a judgment. An application for an order is a motion.” (§ 1003.) “A judgment is the final determination of the rights of the parties in an action or proceeding.” (§ 577.) Thus, section 1008 authorizes motions for reconsideration of orders that have been entered on a parties’ motion; it does not authorize a request that the court reconsider and vacate a judgment or enter a different judgment.
A motion for reconsideration of a prejudgment order or renewal of a prejudgment motion must be made prior to entry of judgment. “A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered.” (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.) This rule applies to prejudgment orders that later become subsumed within the judgment. (D.R.S. Trading Co., Inc. v. Barnes (2009) 180 Cal.App.4th 815, 820.) “‘After judgment a trial court cannot correct judicial error except in accordance with statutory proceedings.’” [Citation.]” (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1238.) Once judgment has been entered, the trial court “‘may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.’” (Id. at pp. 1236.) The aggrieved party may also attack the judgment by filing a timely notice of appeal. (Id. at p. 1238.)
Plaintiffs filed their February 11, 2010, motion months after judgment had been entered. Confusingly, the caption did not identify it as a motion to set aside the judgment, but as a motion to set aside prejudgment orders: the order granting defendants’ motion for summary judgment and the order denying plaintiffs’ ex parte application for a continuance of that motion. Without setting aside the judgment, however, the trial court could not reconsider or change those orders. The motion relied on section 473, subdivision (b), which authorizes relief “from a judgment, dismissal, order, or other proceeding.” The trial court interpreted the motion as requesting that the judgment, as well as the underlying orders, be vacated. Its April 19, 2010, order set aside both the judgment and the challenged orders. We will also construe the motion, in accordance with its substance, as a motion to vacate the judgment and the underlying orders pursuant to section 473(b), rather than as an untimely postjudgment motion for reconsideration.
This section and subdivision will be referred to hereinafter as section 473(b).
II. Motion for Relief Pursuant to Section 473
Section 473(b), provides for two types of relief: discretionary and mandatory. The provision for discretionary relief states:
“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.” (§ 473(b).)
The mandatory relief provision provides:
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473 (b).)
“Under [the mandatory] provision, a party will be relieved if a default judgment or dismissal is the result of its attorney’s mistake, inadvertence, surprise, or neglect, without regard to whether the neglect is excusable. [Citation.]” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225 (Henderson).)
A. Mandatory relief
“The mandatory relief provision of section 473(b) is a ‘narrow exception to the discretionary relief provision for default judgments and dismissals.’ [Citation.]” (Henderson, supra, 187 Cal.App.4th at p. 226.) By its express terms, it applies only to defaults, default judgments, and dismissals. A summary judgment does not fall into any of these categories. (Id. at pp. 227-228.) Consequently, “[b]ecause the mandatory relief provision of section 473(b) does not include relief for mistakes an attorney makes in opposing, or not opposing, a summary judgment motion (or not timely requesting a continuance of a hearing on a summary judgment motion), ” the trial court correctly concluded relief under the mandatory provision was not available in this case. (Id. at p. 228.)
B. Discretionary relief
“A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “That discretion, however, ‘“is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.”’ [Citations.]” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.) “[T]he party moving for relief from a judgment has the burden of establishing the basis for relief.” (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041 (Parage).)
“‘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.”’ [Citation.] 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.’ [Citation.] ‘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.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) “There is nothing in section 473 to suggest it ‘was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611-612 (Pietak).)
Defendants filed and personally served their motion for summary judgment on plaintiffs on May 22, 2009, 75 days before the hearing date of August 5, 2009. Plaintiffs’ opposition was due on Wednesday, July 22. Langer, Contos’s paralegal, left messages with Dr. Frumovitz’s office the week before the opposition was due, but Dr. Frumovitz was out of town and did not return the calls until Friday, July 17. At that time, he indicated he would review the medical records Monday evening and be able to sign a declaration for the summary judgment opposition on Tuesday. The records and retainer were apparently provided to Dr. Frumovitz at approximately 3:30 p.m. on Monday, July 20, the day the parties’ designations of expert witnesses were required to be served. At 4:37 p.m. the same day, after plaintiffs purportedly served a designation of expert witnesses naming Dr. Frumovitz as plaintiffs’ expert, Dr. Frumovitz advised Langer he could not act as plaintiffs’ expert because of a conflict.
Plaintiffs characterize the sudden discovery of a conflict as a “surprise, ” entitling them to relief from the judgment against them. “The 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.]” (Pietak, supra, 90 Cal.App.4th at p. 611.) Whether waiting until 3:30 p.m. on the date plaintiffs’ designation of expert witnesses is due to provide the expert who is expected to act on plaintiffs’ behalf with the relevant medical records and retainer, without earlier memorializing in writing that the expert has agreed to work on the matter, and then discovering the expert was retained by the opposing party, was an unexpected situation in which plaintiffs’ attorney was placed “‘“without any default or negligence of his own, which ordinary prudence could not have guarded against”’” is debatable. (Ibid.) Even assuming the unexpected conflict constituted “surprise” as that term is used in section 473(b), however, it was the failure to file opposition raising a triable issue of fact that caused the court to grant the motion for summary judgment and enter judgment against plaintiffs. The argument that Contos was surprised by the expert’s conflict does not fully explain the failure to timely file a response to the summary judgment motion.
The summary judgment statute, section 437c, provides that “[a]ny opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (§ 437c, subd. (b)(2).) Thus, the statute expressly sets out the time when opposition to the motion must be served and file, and provides that any change in the usual time for filing opposition requires good cause and court approval.
The statute also provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment … 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.” (§ 437c, subd. (h).) Plaintiffs wished to file an expert declaration in support of their opposition to the motion for summary judgment. They contended the reason for their failure to file timely opposition was that they discovered two days before their opposition was due that their expert was unavailable to provide that declaration. Section 437c, subdivision (h), expressly addresses that situation. It authorizes the court to continue the motion to allow the opposing party to obtain declarations necessary to the opposition, which “for reasons stated” could not be timely provided. It permits the request for a continuance to be included in the party’s opposition or made in a separate ex parte application; either way, it must be filed on or before the date the opposition is due.
Plaintiffs did not file a timely opposition. Contos does not contend he inadvertently missed the due date because, for example, he was unaware of the date, miscalculated it, or miscalendared it. In their late-filed opposition, plaintiffs argued the declaration of Dr. Ynostroza filed in support of the motion was insufficient to support the motion, because it did not establish the applicable standard of care; it did not even establish that Dr. Ynostroza adhered to his usual standard of care, as stated, because he admitted he had no independent recollection of the procedure; and it did not establish that his notes of the procedure were in error, because he admitted he had no independent recollection of the procedure. Contos did not explain why these arguments could not have been made in a timely filed opposition, either alone or in conjunction with a request for a continuance to obtain an expert declaration.
When the conflict was discovered, plaintiffs asked defense counsel to stipulate to a continuance of the hearing of the motion, but defense counsel declined. Although section 437c indicates court approval is necessary in order to either continue the hearing of the motion or file opposition at a different time than that set out in the statute, Contos did not timely ask the court for either a continuance or an extension of his time for filing opposition. Section 437c, subdivision (a), provides that a motion for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” Because the motion was originally set 34 days before the trial date, court approval was necessary for this additional reason, if plaintiffs wished to continue the hearing for more than four days.
When they ultimately filed their ex parte application for a continuance, on the day before the hearing of the motion, they asked for a six day continuance, because their opposition was filed six days late.
In spite of these statutory provisions, Contos allowed the deadline for filing opposition to pass without filing any response with the court. At the hearing of the motion to vacate, Contos explained:
“[W]hen the issue with Dr. Frumovitz arose, I was -- I was just starting a trial in Riverside. And I know that Gail Langer was trying to juggle balls, figure out what to do. Honestly, I did not think about going in on a motion to extend our time to respond with a motion perhaps under 437(c)(h) [sic]. [¶] … [¶] I thought we were doing the right thing, not procedurally per se, but in trying to quickly get a competent declaration and put that declaration before the Court.…”
He added: “And it sounded logical at the time -- get a good declaration, and get it on file.” Contos simply ignored the deadline, ignored the statutory procedures for obtaining a continuance or an extension of time to file opposition, and filed and served the opposition six days late without leave of court. It was not until defendants objected to consideration of the late-filed opposition that Contos presented his ex parte application for a continuance. By then, the time for filing an ex parte application had passed and the hearing of the motion was scheduled for the following day.
While a trial court has discretion to vacate a judgment pursuant to section 473(b), “this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Plaintiffs failed to show a proper ground for relief; they failed to show that Contos’s failure to file a timely opposition or ex parte application for a continuance was excusable. “‘[I]f a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief. It has no discretion.’ [Citation.]” (Parage, supra, 60 Cal.App.4th at p. 1042.)
In the trial court’s order granting the motion to vacate the judgment, the court did not make a finding that Contos’s failure to file and serve timely opposition to the motion for summary judgment or a timely application for a continuance was the result of a mistake, inadvertence, surprise or neglect that was excusable. The court did not discuss the elements required for discretionary relief under section 473(b). Instead, it stated it appreciated defense counsel’s position, but it was “required to apply different standards in order to achieve justice, and find the truth, ” and “the overriding consideration must be achieving substantive justice.” It then concluded plaintiffs’ ex parte application for a continuance should have been granted when made, and the motion for summary judgment should have been heard on its merits.
The ex parte application for a continuance, however, was untimely and, as the trial court noted in its ruling on that application, “fail[ed] to demonstrate why the Ex Parte Application was not filed on or before [July] 22, 2009, despite counsel’s knowledge of an issue involving the expert.” Plaintiffs’ motion to vacate the judgment did not demonstrate that Contos’s failure to file a timely opposition or a timely ex parte application for a continuance was the result of mistake, inadvertence, surprise or excusable neglect, as required for relief under the discretionary portion of section 473(b). Consequently, the trial court had no discretion to grant the motion to vacate.
DISPOSITION
The April 19, 2010, order vacating the judgment and the underlying orders is reversed. Appellants are entitled to their costs on appeal.
WE CONCUR: WISEMAN, J., CORNELL, J.