A.G. PROPERTIES, INC. VS RANDLE UNGER, ET AL.,

Tentative Rulings

Case Number: ****8109    Hearing Date: May 28, 2021    Dept: M

CASE NAME: A.G. Properties, Inc. v. Randle Unger, et al.

CASE NUMBER: ****8109

MOTION: Motion to Reopen Discovery

HEARING DATE: 05/28/2021

LEGAL STANDARD

“On motion of any party, the court may grant leave to . . . reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., ; 2024.050(a).)

When considering whether to exercise its discretion, the Court considers, but is not limited to, the following: (1) The necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (Code Civ. Proc., ; 2024.050(b).)

REQUEST FOR JUDICIAL NOTICE

Defendants seek judicial notice of the Court’s own file, specifically:

• Court’s Minute Order dated January 24, 2019

• Court’s Minute Order dated January 28, 2019

• Court’s Minute Order dated August 9, 2019

• Substitution of Attorney filed August 21, 2019

• Notice of Ruling filed September 9, 2019, which includes as Exhibit “A” the Court’s Minute Order dated September 6, 2019

• The December 15, 2020, Notice Of Ruling on A.G. Properties Inc. Application To Continue Trial Date

• The Court’s continuance of the February 19, 2019 trial date, and the September 16, 2019 trial date and the January 11, 2021 Trial date.

These are judicially noticeable documents and actions by the Court. Therefore, Defendants’ request for judicial notice is GRANTED.

ANALYSIS

Plaintiff A.G. Properties, Inc. filed a meet and confer declaration in compliance with Code of Civil Procedure 2024.050(a). (See Walker, II Decl. ¶7 .)

Plaintiff argues that discovery should be reopened because Plaintiff obtained new counsel and new counsel needs additional discovery to prosecute the case. Plaintiff argues that it will be prejudiced if new counsel is not permitted to conduct discovery. Plaintiff further argues that ten months will elapse between the January 11, 2021 trial date and the November 29, 2021 date.

Defendants oppose the motion arguing that they have responded to all discovery propounded by Plaintiff. (See Rudman Decl. ¶¶3-9, Exs. A-E.) Defendants further contend that Plaintiff fails to provide any basis to allow the reopening of discovery, and that trial has been continued at least three times: February 19, 2019 to September 16, 2019, then to January 11, 2021, and then to the current trial date of November 29, 2021. Defendants argue that should the Court consider allowing the complete reopening of discovery the discovery should be limited to oral depositions only without any production of documents.

In reply, Plaintiff argues that discovery should be reopened because its prior counsel failed to conduct depositions of the Defendants. Plaintiff seeks to fully reopen discovery to propound further document request and to conduct the depositions of Defendants. However, Defendant concedes that it is not opposed to the limited reopening of discovery to oral depositions, without further document production.

Here, as Plaintiff recognizes, discovery has been closed in this matter for years. The Court is not willing to fully reopen discovery given the fact that Plaintiff did conduct written discovery in this matter. However, allowing the limited reopening of discovery for depositions of Defendants will not prevent the case from going to trial on the presently date set. Therefore, the motion to reopen discovery is GRANTED for the limited purpose of conducting the oral depositions of Defendants only without any accompanying request for documents.

Case Number: ****8109    Hearing Date: December 03, 2020    Dept: M

CASE NAME: A.G. Properties, Inc. v. Randle Unger, et al.

CASE NO.: ****8109

SUBJECT: Motion to be Relieved as Counsel

HEARING DATE: 12/3/2020

MOTION

On November 3, 2020, Richmond Ormond of Buchalter, a Professional Corporation, filed a motion to be relieved as counsel for Plaintiff A.G. Properties, Inc.

Legal Standard

The Court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.) An application to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC Rule 3.1362(a), (c), (e).)

ANALYSIS

Case Number: ****8109    Hearing Date: June 23, 2020    Dept: M

MOTION: Plaintiff’s motion for relief under CCP 473(b)

HEARING DATE: 6/23/2020

BACKGROUND

The final status conference on this case was on September 6, 2019. Defendants appeared but Plaintiff failed to appear. The Court dismissed the case with prejudice. On September 6, 2019, Defendants filed a notice of ruling regarding the final status conference, stating: “Because none of the Final Status Conference documents had been filed by Plaintiff, and because of Plaintiff’s failure to appear at the final Status Conference, the Court dismissed the entire action for failure to prosecute the matter, with prejudice.” (9/6/2019 Notice of Ruling Re: Final Status Conference). Plaintiff now seeks relief from default.

Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), an application for relief must be made no more than six months after entry of the order from which relief is sought, and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., ; 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 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.” (Code Civ. Proc., ; 473, subd. (b).) “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.” (Code Civ. Proc., ; 473[emphasis added].)

“It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made. Stated another way, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854–855.)

Request for judicial notice

Defendants request for judicial notice of Exhibits A – E pursuant to Evidence Code Section 452(d). Defendants’ request is GRANTED.

Analysis

Plaintiff moves to set aside the Court’s dismissal for failure to prosecute under Code of Civil Procedure section 473(b), and Code of Civil Procedure section 583. In his papers, Plaintiff argues that it is unclear according to the minute order issued why default was entered but suspects that the case was dismissed due to its failure to appear for the Final Status Conference (FSC) on September 6, 2019. Plaintiff also seeks relief based on the Court’s inherent equity powers. On September 6, 2019, the Court ordered the entire case dismissed with prejudice. Plaintiff’s motion is timely.

Plaintiff provides evidence that it relied on prior counsel’s representations that the FSC was on September 9, 2019. (Stuart Decl. ¶ 4.) Plaintiff argues that the dismissal is the equivalent of a default. Plaintiff also argues that its new counsel had previously conferred with defense counsel prior to the FSC and that defense counsel failed to inform the Court that Plaintiff intended to prosecute the case. Plaintiff also argues that the Court can grant relief under its equitable powers. Finally, Plaintiff argues that the Court misapplied CRC Rule 3.1340 and Code of Civil Procedure section 583.420. Under CRC Rule 3.1340(b), “If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and send notice to all parties at least 20 days before the hearing date.” Furthermore, CRC Rule 3.1340 requires that under section 583, the action must not have been brought to trial within two years before the Court may dismiss the action for failure to prosecute.

“The general rule is that the right of equitable relief from judgments is not confined to judgments procured by fraud, but extends also to judgments wrongfully given by mistake either of the court or of the injured party, unmixed with fraud, and not the result of negligence of the injured party.” (Corey v. Weerts (1963) 214 Cal.App.2d 416, 422 [citing Evry v. Tremble, 154 Cal.App.2d 444].) Here, Plaintiff has failed to provide evidence that the dismissal was not a result of its negligence. Plaintiff had notice of the FSC since at least February of 2019. Plaintiff’s counsel admits that he would have learned about the correct date for the status conference if he had checked the Court’s website for the dates. (Stuart Decl. ¶ 4.) Furthermore, the Court had ordered all pre-trial documents to be filed five court days before the FSC. Whether the FSC was September 9 or September 6, they were not filed at any point in time.

The Court, however, did not have the authority to dismiss the matter for failure to prosecute without giving Plaintiff adequate notice of its intent, and an opportunity to be heard. That did not occur. Moreover, the matter was dismissed less than two years since being filed. Therefore, the Court must vacate the dismissal. The motion is granted and the dismissal is vacated.

As to the underlying cause of the dismissal, Plaintiff failed to comply with the Court’s trial order and failed to appear on September 6, 2019 for the FSC. Thus, the Court will set an OSC re monetary sanctions against Plaintiff pursuant to Code of Civil Procedure section 177.5 for (1) failure to comply with the Court’s trial order, specifically the failure to file five days before the FSC (whether it was September 6 or September 9), the required joint documents, and (2) failure to appear at the September 6, 2019 FSC. The OSC re monetary sanctions will be heard on July 24, 2020 at 9:00 a.m.