Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC356305, Helen I. Bendix, Judge.
James M. Tillipman for Plaintiffs and Appellants.
Marron Lawyers, Paul Marron, Ronald A. Chavez and Victoria L. Wood, for Defendant and Respondent.
ROTHSCHILD, J.
Plaintiffs appeal from the order denying their motion to vacate the judgment entered in favor of defendant SuperShuttle Los Angeles, contending they are entitled to relief under the mandatory and discretionary provisions of Code of Civil Procedure section 473, subdivision (b), and other grounds. We affirm.
Statutory references are to the Code of Civil Procedure.
Plaintiffs are Mirna Rosales, Jess Martinez, Muayyad Boul, Sidney Peraza, Nasser Y. Nasser, Satnam Singh Thandi, Steve Uwagboe, Ali Moussavi, Hany Gergis, Carl Dunlap, Robert T. Morrow, Oleg Goldfarp, Mahmmoud Galal, Ahmed Badran, Henry Martinez, Jabbar Nazarian, Geoffrey Hodge, Petros Torosyan and Mohamad Zabihi.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
On August 1, 2006, plaintiffs filed a complaint against SuperShuttle Franchise Corporation, SuperShuttle International and SuperShuttle Los Angeles (collectively, the SuperShuttle entities), alleging that the SuperShuttle entities improperly had terminated plaintiffs’ franchise agreements based on their participation in a labor demonstration. They asserted causes of action for (1) unlawful termination of franchise, (2) breach of contract, (3) fraud, (4) negligent misrepresentation, (5) negligent infliction of emotional distress and (6) intentional infliction of emotional distress and sought compensatory and punitive damages, prejudgment interest, attorney fees and costs.
The SuperShuttle entities initially moved to compel nine of the plaintiffs to arbitrate their claims. The trial court entered an order denying the motion on the ground that compelling arbitration of some but not all claims could lead to conflicting rulings on common issues of law or fact, and we affirmed the order on appeal. (Rosales v. SuperShuttle Franchise Corp. (Feb. 1, 2008, B196431) [nonpub. opn.].)
2. The January 2009 Motion for Summary Judgment, the Discovery Sanctions Against Plaintiffs and Continuance of the Summary Judgment Hearing
On January 26, 2009, the SuperShuttle entities filed a motion for summary judgment, calendared for hearing on April 14, 2009, arguing that they were entitled to judgment as a matter of law because each of plaintiffs’ causes of action lacked substantive merit.
On February 2, 2009, the trial court (Judge Helen I. Bendix) granted the SuperShuttle entities’ motion for discovery sanctions against plaintiffs on grounds that they had failed to respond to discovery propounded in May 2008 despite two court orders directing them to do so and their counsel had not proffered a credible reason as to why there had been no response. The court ordered that 24 issues were deemed established: (1) neither SuperShuttle International nor SuperShuttle Franchise Corporation “is a party to any franchise agreement with any plaintiff”; (2) “none of the SuperShuttle [entities] was involved in any labor dispute with any plaintiff”; (3) “none of the SuperShuttle [entities] made ‘improper demands’” as alleged in the complaint; (4) “none of the SuperShuttle [entities] engaged in ‘unfair labor practices’”; (5) neither SuperShuttle International nor SuperShuttle Franchise Corporation “‘summarily’ or otherwise terminated any franchise”; (6) neither SuperShuttle International nor SuperShuttle Franchise Corporation “had a franchise agreement with any plaintiff”; (7) neither SuperShuttle International nor SuperShuttle Franchise Corporation “terminated any franchise agreement with any plaintiff”; (8) neither SuperShuttle International nor SuperShuttle Franchise Corporation “had any obligation to ‘repurchase’ ‘resalable current inventory’”; (9) “no plaintiff presently has any item of ‘inventory’ that any of the SuperShuttle [entities] refused to repurchase”; (10) “no plaintiff has suffered damages by the SuperShuttle [entities’] alleged failure to repurchase such plaintiff’s inventory”; (11) “no plaintiff entered into a franchise agreement with either [SuperShuttle International] or [SuperShuttle Franchise Corporation]”; (12) “no plaintiff entered into an oral agreement with either [SuperShuttle International] or [SuperShuttle Franchise Corporation]”; (13) “no plaintiff performed any condition of any alleged contract with either [SuperShuttle International] or [SuperShuttle Franchise Corporation]”; (14) “none of the SuperShuttle [entities] breached any contract with any plaintiff”; (15) “neither [SuperShuttle International] nor [SuperShuttle Franchise Corporation] made any representation that any agreement could not be terminated ‘other than for good cause’”; (16) “no person from the SuperShuttle [entities] made any representation that any agreement could not be terminated ‘other than for good cause’”; (17) SuperShuttle Los Angeles’s “termination of plaintiffs’ franchises and independent contractor agreements was in accordance with applicable law”; (18) “the SuperShuttle [entities] did not act ‘maliciously, fraudulently or oppressively’ to plaintiffs”; (19) “the SuperShuttle [entities] did not make representations to plaintiffs that they had ‘no reasonable grounds to believe... to be true’”; (20) “no plaintiff relied on any representation by any of the SuperShuttle [entities] in entering into any franchise or other contractual arrangement with [SuperShuttle Los Angeles]”; (21) “the SuperShuttle [entities] made no disparaging remark regarding any plaintiff”; (22) “the SuperShuttle [entities] did not inhibit or preclude any plaintiff’s right of ‘freedom of speech and assembly’”; (23) “the SuperShuttle [entities] did not deprive any plaintiff of any property right”; and (24) “the SuperShuttle [entities] did not damage any plaintiff.”
On February 11, 2009, plaintiffs voluntarily dismissed, without prejudice, SuperShuttle International and SuperShuttle Franchise Corporation, leaving SuperShuttle Los Angeles as the only remaining defendant. Based on the dismissal of the case as to SuperShuttle International and SuperShuttle Franchise Corporation, the motion for summary judgment as to those two defendants was withdrawn on February 17, 2009.
On April 9, 2009, plaintiffs’ counsel sent by facsimile a letter to counsel for SuperShuttle Los Angeles, expressing his belief that SuperShuttle Los Angeles intended to take the pending motion for summary judgment, filed on January 26, 2009, off calendar and file a new motion based on the issues deemed established by the discovery sanctions. Plaintiffs’ counsel stated that no opposition had been filed to the January 26, 2009 summary judgment motion based on that belief and that he “trust[ed]” that the motion would be taken off calendar.
The following day, on April 10, 2009, counsel for SuperShuttle Los Angeles responded to plaintiffs’ counsel by letter, stating that he “did not say [he] had authority to withdraw the [summary judgment] motion” but “could only make recommendations.” SuperShuttle Los Angeles’s counsel further indicated that the hearing on the January 26, 2009 summary judgment motion had been continued to June 3, 2009 and that, if the parties were unable to settle the matter in the following two weeks, he would file on behalf of SuperShuttle Los Angeles another summary judgment motion based on the issues established as a result of the discovery sanctions. Also on April 10, 2009, counsel for SuperShuttle Los Angeles served plaintiffs by mail and facsimile with a notice of continuance of the hearing on the January 26, 2009 motion for summary judgment from April 14, 2009 to June 3, 2009, and it filed the notice in the trial court on April 13, 2009.
3. The May 2009 Motion for Summary Judgment
On May 5, 2009, SuperShuttle Los Angeles filed another motion for summary judgment, calendared for hearing on July 31, 2009, this time contending that the issues established as a result of the discovery sanctions against plaintiffs demonstrated that it had no liability to plaintiffs as a matter of law.
4. The Trial Court’s Order Granting the January 2009 Motion for Summary Judgment and Entry of Judgment
Plaintiffs did not file opposition to the January 26, 2009 motion for summary judgment or appear at the hearing on June 3, 2009. At that hearing, the trial court (Judge Coleman A. Swart) granted summary judgment, concluding that the evidence presented by SuperShuttle Los Angeles refuted plaintiffs’ claims and thus shifted the burden to plaintiffs to demonstrate a triable issue of material fact, but plaintiffs had not filed any opposition papers to raise any triable issue of material fact. The court ordered SuperShuttle Los Angeles to give notice and submit a proposed order and judgment.
SuperShuttle Los Angeles served plaintiffs by facsimile on June 4, 2009 with notice of the ruling on the summary judgment motion and filed that notice in the trial court on June 5, 2009. On June 23, 2009, SuperShuttle Los Angeles served plaintiffs by mail with an order granting summary judgment and judgment, which was lodged with the trial court on June 24, 2009.
Also on June 24, 2009, the SuperShuttle entities filed a motion for attorney fees and costs, contending that plaintiffs had sued them on contracts containing an attorney fee provision and that each of the entities was a prevailing party by virtue of plaintiffs’ dismissal of SuperShuttle International and SuperShuttle Franchise Corporation and the summary judgment in favor of SuperShuttle Los Angeles. Plaintiffs filed opposition to the motion for attorney fees and costs on July 20, 2009. The trial court (Judge Swart) granted the motion on August 3, 2009, awarding the SuperShuttle entities $165,109 in attorney fees and costs.
On August 11, 2009, the trial court (Judge Swart) entered the order granting summary judgment and judgment in favor of SuperShuttle Los Angeles. The judgment also incorporated the dismissals of SuperShuttle International and SuperShuttle Franchise Corporation. And it reflected the $165,109 award of attorney fees and costs to the SuperShuttle entities. The SuperShuttle entities served plaintiff by mail with notice of entry of judgment on August 13, 2009 and filed the document on August 14, 2009. Plaintiffs did not appeal from the judgment.
5. Plaintiffs’ Motion to Vacate the Judgment As to SuperShuttle Los Angeles
Almost three months later, on November 12, 2009, plaintiffs filed a motion to vacate the judgment as to SuperShuttle Los Angeles. Plaintiffs requested the judgment be vacated under the mandatory provision of section 473, subdivision (b), based on declarations from two of their lawyers stating that they “assumed” the May 2009 summary judgment motion calendared for July 31, 2009 “superseded” the January 2009 summary judgment motion calendared for hearing on June 3, 2009 and that “[t]he lack of an opposition or appearance at the hearing on June 3 was due to [their] mistake and inadvertence... due to the filing of the same motion for hearing on July 31 as had been set for June 3.” Both lawyers declared that they “did not know” that SuperShuttle Los Angeles had “proceeded with a hearing on June 3 until [their] receipt of a notice of ruling. This was not the fault of the plaintiffs....” Plaintiffs also claimed that they were entitled to relief from the judgment under the discretionary provision of section 473, subdivision (b), based on excusable mistake, inadvertence, surprise or neglect. And they asserted that the judgment should be set aside as incorrect or erroneous under section 663, as a void judgment under section 473, subdivision (d), or as based on extrinsic fraud or mistake under the court’s equitable power.
Because plaintiffs moved to vacate the judgment only as to SuperShuttle Los Angeles, SuperShuttle International and SuperShuttle Franchise Corporation, which were voluntarily dismissed from the case, are not parties to this appeal from the order denying plaintiffs’ motion.
In opposition to the motion, SuperShuttle Los Angeles argued that plaintiffs were not entitled to mandatory relief under section 473, subdivision (b), because the provision does not apply to relieve a plaintiff from an order granting summary judgment and, in any event, counsels’ declarations did not contain a “‘straightforward admission of fault.’” SuperShuttle Los Angeles also argued that application of the discretionary provision of the statute was not warranted because plaintiffs had not demonstrated excusable neglect by their counsel, had delayed in filing their motion to vacate and had failed to file a proposed opposition to summary judgment along with their motion. In connection with its argument that relief under section 473, subdivision (b), was not warranted, SuperShuttle Los Angeles pointed out that, contrary to plaintiffs’ counsel’s assertions in their declarations, the two motions for summary judgment were not the same. The first motion contended that under the evidence all of plaintiffs’ causes of action lacked substantive merit as a matter of law, while the second motion argued that the issues deemed established through the discovery sanctions confirmed that SuperShuttle Los Angeles was entitled to judgment in its favor as a matter of law. In addition, SuperShuttle Los Angeles maintained that no basis existed to set aside the judgment as incorrect or void or on grounds that it was the product of extrinsic fraud or mistake.
6. The Order Denying the Motion to Vacate
On December 9, 2009, the trial court (Judge Bendix) denied plaintiffs’ motion, concluding that they had not presented a basis for either mandatory or discretionary relief under section 473, subdivision (b), and that no other grounds existed to set aside the judgment as to SuperShuttle Los Angeles.
According to the court, “[f]irst, mandatory relief under Section 473 is not available to vacate an order granting a summary judgment motion. [Citations.] [¶] Second, regarding discretionary relief[, ]... plaintiffs’ counsel[’s]... ground for discretionary relief [that “he ‘assumed’ that a second noticed summary judgment ‘superseded’ the earlier noticed motion and that he did not have to file an opposition to the earlier noticed motion”] does not constitute excusable neglect, mistake, inadvertence or surprise. It is simply not reasonable to assume that a matter gets taken off calendar because the opposing party calendars a similar second motion. The law is not difficult to understand here: ‘The moving party must immediately notify the court if a matter will not be heard on the scheduled date.’ [Citation.] There was nothing in the exchange of correspondence between counsel to lead a reasonably prudent attorney to believe that he could ignore the due date for an opposition to the earlier of the two motions. [Citation.] If counsel had any doubt in that regard, as a prudent attorney, he should have attended both hearings, or contacted moving counsel about their intent as to the first set matter. [¶] In addition, the court further finds plaintiffs have not been diligent in prosecuting the instant motion given that notice of Judge Swart’s ruling was sent to them on June 4, 2009, and that they filed this motion only on 11/12/09. Plaintiffs provide literally no excuse for this delay, or why they did not bring the motion earlier. Nor do plaintiffs attach any proposed opposition to the summary judgment motion. [¶] Third, because plaintiffs failed to seek reconsideration of Judge Swart’s ruling within the 10 day period described in CCP Section 1008, this court has no jurisdiction to consider such a motion. [Citation.] Furthermore, after entry of a final judgment, courts lack jurisdiction to rule upon a motion for reconsideration. [Citation.] [¶] Fourth, the ground of relief based upon a void judgment is inapplicable here, because the judgment and related record do not reveal the asserted ground for lack of notice[, ] i.e., that counsel assumed the second calendaring meant that the first motion was off calendar. For that information, the court must rely upon extrinsic evidence [of] moving counsel’s declaration. Nor is failure of notice in evidence either. Specifically, the notice of continuance is clear in showing that [defendant’s] counsel had noticed that the hearing set for April 14 was continued to June 3. [¶] Fifth, the equitable grounds of extrinsic fraud or mistake are inapposite here, because defendant[] duly served a notice of the continuance, and moving counsel’s unfounded assumption led to plaintiffs’ strategic election to not file an opposition. Furthermore, diligence, and a satisfactory excuse are absent.”
An order denying a motion to vacate is appealable under section 904.1, subdivision (a)(2), as an order after judgment to the extent that it is based on statute. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 663 [§ 663 motion]; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394 [§ 473 motion].) In addition, a motion to vacate a void judgment is appealable. (311 South Spring St. Co. v. Department of General Services (2009) 178 Cal.App.4th 1009, 1014.) To the extent plaintiffs seek relief from the judgment on grounds not covered by statute or based on a void judgment, the order denying their motion to vacate is not appealable in that regard, and their avenue of review was to appeal from the judgment itself, which they did not do. (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1146.)
DISCUSSION
1. Plaintiffs Are Not Entitled to Relief from the Judgment in Favor of SuperShuttle Los Angeles Under Section 473, Subdivision (b)
Section 473, subdivision (b), contains both mandatory and discretionary provisions providing a means for relief under specified circumstances. Under the discretionary provision, “[t]he 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 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.” Under the mandatory, or attorney fault, provision, “[n]otwithstanding 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.”
Plaintiffs contend the trial court erred in denying their motion to vacate because they are entitled to relief from the judgment under both the mandatory and discretionary provisions of the statute. We disagree.
a. The mandatory relief provision of the statute does not apply
SuperShuttle Los Angeles argued, and the trial court agreed, that, because a summary judgment is not a “default, ” “default judgment” or “dismissal” as specified in the statute, the mandatory provision of section 473, subdivision (b), does not apply. Although plaintiffs are correct that at least one court has applied the mandatory provision of section 473, subdivision (b), to vacate a summary judgment (see Avila v. Chua (1997) 57 Cal.App.4th 860, 868 [Second Dist., Div. Five]), other more recent cases have rejected that approach, strictly construing the statute to conclude that it does not apply to vacate a summary judgment, which is neither a “default, ” “default judgment” or “dismissal.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228 [Fifth Dist.] [“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”]; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 [Sixth Dist.] [“[s]ummary judgments... are not within the purview of the mandatory relief provision”]; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 295 [Second Dist., Div. Eight] [“mandatory provision of section 473(b) does not empower a court to set aside a summary judgment”]; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138 [Third Dist.] [“mandatory provision of section 473(b) simply does not apply to summary judgments because a summary judgment is neither a ‘default, ’ nor a ‘default judgment, ’ nor a ‘dismissal’ within the meaning of section 473(b)”]; see also Hossain v. Hossain (2007) 157 Cal.App.4th 454, 458 [Second Dist., Div. Four].)
We agree with the more recent cases concluding that the mandatory provision of section 473, subdivision (b), does not apply to a summary judgment and thus conclude it affords plaintiffs no ground to vacate the judgment in favor of SuperShuttle Los Angeles.
Because we conclude that the mandatory provision of section 473, subdivision (b), does not apply to relieve a party from a summary judgment, we need not decide whether plaintiffs’ counsel’s declarations submitted in connection with their motion to vacate established attorney fault within the meaning of the statute.
b. The trial court did not err in denying discretionary relief
Unlike the mandatory provision of the statute, the discretionary provision is not limited to defaults, default judgments and dismissals and applies broadly to a “judgment, dismissal, order, or other proceeding, ” thus encompassing a summary judgment. Nevertheless, to find an attorney’s conduct was excusable such that discretionary relief is warranted the trial court must determine that “a reasonably prudent person might have made the same mistake under the same or similar circumstances. [Citation.]” (Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at p. 229.) “Generally speaking, the trial court’s ruling on a discretionary motion for relief is reviewed for an abuse of discretion. [Citation.]” (Id. at p. 230.) But, because of the law strongly favoring trial and disposition on the merits, “‘a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’ [Citation.]” (Ibid.)
Plaintiffs argue that they are entitled to relief under the discretionary provision of section 473, subdivision (b), as a result of mistake, inadvertence, surprise or excusable neglect on the part of their counsel in failing to oppose and appear at the hearing on the January 2009 motion for summary judgment. For three separate and independent reasons, plaintiffs’ argument is not persuasive.
First, as the trial court concluded, plaintiffs’ counsel’s failure to oppose and appear at the hearing on the January 2009 motion for summary judgment was not excusable within the meaning of the statute. Although SuperShuttle Los Angeles filed a second summary judgment motion in May 2009, nothing in the record indicates any basis for counsel to have “assumed” that the January 2009 motion was off calendar. On the contrary, plaintiffs’ counsel was served with a notice of continuance of the hearing to June 3, 2009, indicating that the motion was still on calendar. (See Cal. Rules of Court, rule 3.1304(b) [“moving party must immediately notify the court if a matter will not be heard on the scheduled date”].) Moreover, plaintiffs cite no authority to support their counsel’s unwarranted assumption that the filing of a second summary judgment motion automatically supersedes a previously filed one. And, contrary to the declarations of plaintiffs’ counsel, the January 2009 and May 2009 motions for summary judgment were not “the same” and there was a “logical reason” for filing the May 2009 motion for summary judgment such that it was not reasonable to “assume[]” that it “superseded” the January 2009 motion—even if it were possible for a later filed summary judgment motion to supersede a previous one. The May 2009 summary judgment motion was premised on the issues deemed established as a result of the discovery sanctions against plaintiffs, whereas the January 2009 motion was premised on the evidence submitted to demonstrate the lack of a triable issue of fact on plaintiffs’ causes of action absent those established issues. Based on these circumstances, even under our more scrutinizing standard of review, the trial court was well within its discretion to conclude that the record would not “lead a reasonably prudent attorney to believe that he could ignore the due date for an opposition to the earlier of the two motions. [Citation.] If counsel had any doubt in that regard, as a prudent attorney, he should have attended both hearings, or contacted moving counsel about their intent as to the first set matter.” (See Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at p. 232 [no discretionary relief when, “under the reasonable person standard, [counsel’s] errors cannot be regarded as the type of errors a reasonably prudent person would make” but rather “involved matters peculiar to the legal profession”].)
Second, plaintiffs were not diligent in seeking discretionary relief under section 473, subdivision (b). They were served with notice of ruling on the January 2009 summary judgment motion on June 4, 2009. They were served with a proposed order granting summary judgment and judgment on June 23, 2009, and did not object to or oppose entry of the order and judgment. They later opposed the SuperShuttle entities’ motion for attorney fees and costs, without any mention of an intent or basis to seek relief from the ruling on the summary judgment motion. After the order granting summary judgment and judgment were entered on August 11, 2009, with notice of entry served on plaintiffs on August 13, 2009, plaintiffs still did not file their motion to vacate the judgment as to SuperShuttle Los Angeles until November 12, 2009, almost three months later. And they offered no explanation for the three-month delay. Assuming the starting point for plaintiffs to seek relief from the summary judgment was service of notice of entry of judgment on August 13, 2009, such a three-month delay without explanation, although within the allowable, six-month, statutory period, is not “reasonable” under the circumstances to entitle plaintiffs to discretionary relief. (Huh v. Wang, supra, 158 Cal.App.4th at pp. 1421-1422 [no discretionary relief warranted when plaintiffs waited just more than three months from notice of entry of judgment, after an order granting summary judgment, to move to vacate the judgment and “offered no evidence explaining the delay”].)
Finally, “[a]pplication for [discretionary] 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....” (§ 473, subd. (b), italics added.) Plaintiffs never filed a proposed opposition to the January 2009 motion for summary judgment, as statutorily required.
2. Plaintiffs Are Not Entitled to Relief From the Judgment in Favor of SuperShuttle Los Angeles Under Any of Their Other Asserted Grounds
In addition to arguing that their motion to vacate should have been granted under section 473, subdivision (b), plaintiffs contend the trial court should have afforded them relief pursuant to section 663, which allows a trial court to “set aside and vacate[]” a judgment and enter “another and different judgment” for cause “materially affecting the substantial rights of the party and entitling the party to a different judgment” when there is an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts.” (§ 663, par. 1.) Plaintiffs, however, did not demonstrate any incorrect or erroneous legal basis for the judgment in favor of SuperShuttle Los Angeles that is not consistent with or supported by the facts. According to the facts, SuperShuttle Los Angeles moved for summary judgment, and plaintiffs failed to oppose the motion or appear for the hearing. At the hearing, the trial court (Judge Swart) concluded that, based on the evidence presented in support of the motion, SuperShuttle had satisfied its initial burden on summary judgment and thus had shifted the burden to plaintiffs to demonstrate a triable issue of material fact in order to defeat the motion, which plaintiffs by their lack of opposition did not do. Summary judgment is properly granted under those circumstances. (§ 437c, subd. (c) [“motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law”].) After the trial court granted summary judgment, SuperShuttle Los Angeles served plaintiffs with a proposed order granting summary judgment and judgment to which plaintiffs did not object. And the judgment correctly reflects the summary judgment ruling.
Plaintiffs also maintain that the trial court should have set aside the judgment as void under section 473, subdivision (d), which allows the court upon motion to set aside any void judgment. But plaintiffs did not establish that the judgment was void in any respect. The judgment was entered only after plaintiffs were served with a noticed motion for summary judgment; a notice of continuance of the hearing date; a notice of ruling on the motion; and a proposed order granting summary judgment and judgment. The judgment is in conformity with the ruling on the summary judgment motion, and, contrary to plaintiffs’ argument, nothing suggests the second summary judgment motion, based on different grounds, automatically superseded the first. Consequently, the judgment is not void, and plaintiffs do not have grounds to vacate it under section 473, subdivision (d).
DISPOSITION
The order is affirmed. SuperShuttle Los Angeles is entitled to recover its costs on appeal.
We concur: MALLANO, P. J., JOHNSON, J.