On 10/06/2017 COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY filed a Contract - Other Contract lawsuit against JONATHON G. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG, ELAINE LU and EDWARD B. MORETON. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY E. KENDIG
EDWARD B. MORETON
COLDWELL BANKER RESIDENTIAL BROKERAGE
KEITH JONATHON G.
JONATHON G KEITH AS TRUSTEE OF THE
DOES 1 TO 50
MACCARLEY MARK ESQ.
MACCARLEY MARK JOHN ESQ.
CHEN FRANK W. ESQ.
2/5/2020: Proof of Service by Mail
1/16/2020: Order - ORDER RE: DEFENDANT'S MOTION TO VACATE JUDGMENT UNDER CCP 473
8/7/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME TO HEAR MOTIO...) OF 08/07/2019
8/7/2019: Abstract of Judgment - Civil and Small Claims
8/7/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME TO HEAR MOTIO...)
7/17/2019: Reply - REPLY TO EX PARTE APPLICATION FOR AN ORDER TO SHORTEN TIME
7/10/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME TO HEAR MOTIO...)
6/25/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
5/23/2019: Substitution of Attorney
5/10/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)
2/19/2019: Exhibit List
1/31/2018: CASE MANAGEMENT STATEMENT -
2/22/2018: Minute Order -
4/17/2018: CIVIL DEPOSIT -
5/14/2018: CASE MANAGEMENT ORDER
11/7/2017: ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
10/25/2017: PROOF OF SERVICE SUMMONS -
10/31/2017: PROOF OF SERVICE RE: NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Application for Order for Appearance and Examination - Not Held - Taken Off Calendar by PartyRead MoreRead Less
DocketProof of Service by Mail; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: Dismissal - HeldRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal)); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal (Not Entered); Filed by JONATHON G. KEITH (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) - HeldRead MoreRead Less
DocketOrder (RE: DEFENDANT'S MOTION TO VACATE JUDGMENT UNDER CCP 473); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))); Filed by ClerkRead MoreRead Less
DocketOpposition (to Motion to Set Aside Judgment by Summary Judgment); Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICERead MoreRead Less
DocketCOMPLAINT FOR: (1) BREACH OF CONTRACT; (2) PROMISSORY FRAUDRead MoreRead Less
DocketComplaint; Filed by COLDWELL BANKER RESIDENTIAL BROKERAGE (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC678733 Hearing Date: January 16, 2020 Dept: 26
COLDWELL BANKER RESIDENTIAL BROKERAGE COMPANY.,
JONATHON KEITH, et al.
Case No.: BC678733
Hearing Date: January 16, 2020
[TENTATIVE] order RE:
Defendant’s motion to VACATE JUDGMENT under CCP § 473
On October 6, 2017, plaintiff Coldwell Banker Residential Brokerage Company (“Plaintiff”) commenced this action against defendants Jonathon G. Keith (as trustee of the Jonathon G. Keith Trust) and Jonathon G. Keith (individually) alleging causes of action for breach of contract and promissory fraud.
The complaint alleges the following: Jonathon Keith (“Keith”) was the owner/seller of residential real property commonly referred to as 3340 Crestford Drive, Altadena, CA 91001 (hereinafter “Property”). (Complaint ¶ 6.) On August 26, 2016, Keith as Trustee of the Jonathon Keith Trust (the “Trust”) entered into a Listing Agreement with Plaintiff in order to sell the Property. (Id. ¶ 7.) Additionally, on September 29, 2016, Keith in his individual capacity entered into an identical Listing Agreement with Plaintiff in order to sell the Property. (Ibid.)
Per paragraph 3A of the agreement between the parties, Keith as Trustee of the Trust and/or in his individual capacity, obligated himself to pay Plaintiff five percent (5%) of the selling price as compensation for Plaintiff's brokerage services. (Id. ¶ 8.) The agreements provide for an exclusive and irrevocable listing from August 23, 2016 through February 22, 2017. (Id. ¶ 9.) Pursuant to Section 3A of the agreements, commission shall be payable to the broker, in this instance, Plaintiff, if during the listing period the broker procures a ready, willing, and able buyer(s) whose offer to purchase the Property on any price and terms is accepted by Seller, even if it closes after the expiration of the listing period, and even if the Property is withdrawn from sale, except for with the written consent of the broker. (Id.)
On January 23, 2017, Plaintiff’s real estate salesperson, Chuck Livingstone, brought an offer to purchase the Property to Keith from Brendan Boland. (Id. ¶ 10.) When Livingstone disclosed the identity of the proposed buyer, who happened to be a close friend of Keith’s soon-to-be ex-wife, Keith telephoned Livingstone and indicated that he would never sell to his wife’s soon-to-be boyfriend. (Id.) Keith thereafter indicated that he was “firing” Plaintiff and Livingstone, thereby breaching the Agreement, without cause. (Id.) Thereafter, Keith accepted Brendan Boland’s offer to purchase the Property for $870,000, and escrow closed on or about May 4, 2017. (Id. ¶ 12.) The agreements between Plaintiff and Keith and the Trust were valid through February 25, 2017, and as a result, Defendants are legally obligated to pay Plaintiff the commission amount of $43,500 for their brokerage services during the sale of the Property which Defendants have failed to pay. (Id. ¶¶ 13-14.)
Plaintiff filed the complaint in this action on October 6, 2017. Defendant filed an answer in pro per on November 7, 2017. On April 4, 2018, Frank W Chen, Esq. substituted in as counsel of record for Defendant. On November 28, 2018, Frank Chen substituted out, and Defendant substituted back in as his own legal representative.
On February 19, 2019, Plaintiff filed and served its motion for summary judgment. The motion for summary judgment was initially noticed for hearing on May 8, 2019. On March 5, 2019, the court on its own motion continued the motion for summary judgment to be heard on May 10, 2019 and served notice on all parties.
Defendant did not file any written opposition to Plaintiff’s motion for summary judgment. Nor did Defendant file any written request for a continuance of the motion for summary judgment hearing. However, Defendant appeared at the May 10, 2019 hearing on Plaintiffs’ motion for summary judgment, presented oral arguments in opposition to Plaintiff’s motion for summary judgment, and orally requested a continuance. Defendant did not at any time during the hearing identify any evidence that he could obtain to oppose Plaintiff‘s motion for summary judgment. Instead, Defendant argued on the merits as to why the Court should deny Plaintiff‘s motion for summary judgment, and Defendant lamented that he had spoken with many attorneys, but none would accept his case without payment of a retainer that Defendant could not afford. The Court denied Defendant’s oral request for a continuance of the summary judgment motion hearing, and the Court granted summary judgment in favor of Plaintiff against Keith (“Defendant”) but denied summary judgment against the Trust.
On June 28, 2019, the Court entered Judgment against Defendant. Defendant filed the instant motion to vacate the judgment on July 9, 2019. Plaintiff filed an opposition on January 13, 2020.
Defendant asserts that he brings this motion pursuant to Code of Civil Procedure section 473 based upon new and different facts and circumstances. CCP § 473(b) provides in relevant part:
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.
(CCP § 473(b).)
The party seeking relief under section 473 on the basis of mistake, inadvertence, or excusable neglect has the burden of showing a satisfactory excuse for the occurrence of that mistake, inadvertence, or neglect. (See Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 929; Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196.) Neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error. (See Austin, supra, 244 Cal.App.4th at 929.)
“It is well settled that before relief may be granted under section 473 it must be made to appear that if the judgment were set aside and the proceeding reopened a different result would probably follow. (Zancaner v. Louisville & Nashville R. Co. (1963) 220 Cal.App.2d 836, 839) [internal citations omitted].)
As this motion was filed within six months of the date of judgment it is timely.
Applicability of CCP Section 473(b) to Summary Judgments
As a threshold matter, the Court notes that it is highly doubtful that CCP Section 473(b) applies at all to judgments based on motions for summary judgment. As the Court of Appeal reasoned in The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993:
Here, the statutory language is unequivocal. ‘As expressly worded, section 473(b) applies only to relief sought in response to defaults, default judgments or dismissals.’ [Citation omitted] Summary judgments are neither defaults, nor default judgments, nor dismissals. [Citation omitted] The explicit statutory language of section 473(b) thus ‘provides no basis for extending the mandatory provision’ to such judgments. [Citation omitted] In the words of Justice Epstein, ‘to read the mandatory provision of ... section 473 to apply whenever a party loses his or her day in court due to attorney error goes far beyond anything the Legislature has done.’
(The Urban Wildlands Group, Inc. v. City of Los Angeles, 10 Cal.App.5th at 1000 [disapproving In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438 and Avila v. Chua (1997) 57 Cal.App.4th 860].) Notably, all of the cases that Defendant cites in his moving papers address the vacating of a default judgment and are thus inapplicable to the instant action. Here, the Court entered judgment against Defendant having granted Plaintiff’s motion for summary judgment. Pursuant to The Urban Wildlands Group, Inc. v. City of Los Angeles, section 473 does not apply in this context and does not afford any avenue of relief for Defendant.
Defendant’s motion could be denied on this basis alone.
Even assuming arguendo that section 473(b) applies to summary judgments, Defendant fails to demonstrate excusable neglect so as to warrant relief under that section.
As the party seeking relief under section 473 on the basis of mistake, inadvertence, or excusable neglect, Defendant bears the burden of showing a satisfactory excuse for the occurrence of that mistake, inadvertence, or neglect. (See Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 929; Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196.) Defendant fails to do so here.
Defendant claims he was deprived of his right to oppose the motion for summary judgment due to attorney neglect. This claim is without merit. Plaintiff did not file or serve its motion for summary judgment until February 19, 2019 -- more than two and a half months after attorney Frank Chen substituted out of the case. Defendant’s attempt to pin blame on Chen for failing to warn him of the importance of opposing a motion for summary judgment is unavailing as there was no motion for summary judgment pending during any portion of the period that Chen was representing Defendant (from April 4, 2018 through November 28, 2018).
Nor has Defendant demonstrated that his own neglect in failing to oppose Plaintiff’s motion for summary judgment was excusable. Defendant had five and a half months to seek and retain new counsel between the date that Chen substituted out of the case (November 28, 2018) and the summary judgment motion hearing date (May 10, 2019). Defendant received full statutory notice of Plaintiff’s motion for summary judgment, as required under CCP § 437c, and Defendant never suggested at the May 10, 2019 hearing any good cause for why he had not filed a written opposition. Defendant also failed at the May 10, 2019 hearing to identify what evidence he could obtain to oppose Plaintiff’s motion for summary judgment. It was only two months after the Court’s grant of summary judgment that Defendant first submitted any evidence in opposition to Plaintiff’s motion for summary judgment. Even at this late juncture, Defendant fails to provide any reason to justify why he delayed until the filing of this motion to vacate on July 9, 2019 to bring the evidence to the Court’s attention. Nor can Defendant provide justification for such delay as all of the facts asserted in Defendant’s declaration in support of his proposed opposition to Plaintiff’s motion for summary judgment relate to events that occurred well before the hearing on Plaintiff’s motion for summary judgment.
“The doctrine that the granting of relief under section 473 is primarily committed to the discretion of the trial court does not mean that the notion, caprice or inordinate disregard of the opposing evidence should be allowed to control. Such decision must be rooted in a sound discretion, based upon a fair consideration of the total evidence and grounded upon principles of justice and fair dealing.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 519.)
Here, the record belies Defendant’s contention that his attorney’s abandonment of the case caused Defendant’s failure to oppose Plaintiff’s motion for summary judgment. Moreover, Defendant fails to demonstrate any excuse for his own neglect in failing to oppose Plaintiff’s motion for summary judgment.
Defendant’s motion to vacate the summary judgment is therefore denied.
Defendant’s Declaration in Support of Defendant’s Proposed Opposition to Plaintiff’s Motion for Summary Judgment
Even if the Court were to disregard Defendant’s failure to show a satisfactory excuse for his neglect in not opposing Plaintiff’s motion for summary judgment, which the Court may not do, consideration of the merits of Defendant’s arguments opposing summary judgment would not yield any different outcome.
The evidence that Defendant has submitted in support of his proposed opposition to Plaintiff’s motion for summary judgment consists solely of a terse seven-paragraph declaration and a photograph. It is unclear what the photograph depicts. The declaration includes a series of sentences that do not appear connected either chronologically or by subject matter, and it is difficult to follow how these assertions raise a triable issue of fact or otherwise demonstrate why summary judgment should be denied. For several of the facts asserted, Defendant does not provide a foundation for how he would know these facts. For example, Defendant asserts twice in his declaration that his former wife stated at her deposition that she never knew of an offer between her and her new husband. (Keith Decl. ¶¶ 4, 6.) Defendant does not attach any deposition transcript to support this assertion. Indeed, Defendant does not even state that he attended her deposition. The only admissible evidence on this point – Defendant’s former wife’s deposition transcript that Plaintiff submitted as part of its moving papers for the motion for summary judgment – demonstrates that Defendant’s former wife directly testified that she knew of the offer. (Plaintiff’s Exhibits of Evidence in Support of Motion for Summary Judgment, filed 2/19/19, Exh. 15.) Defendant also asserts in his declaration that Mr. Livingstone’s (the broker) contract was not reinstated due to him and his foundation associates knocking down the garden wall. However, even assuming this to be true, it is immaterial whether Mr. Livingstone’s contract was reinstated because the original contract provided for an exclusive and irrevocable listing from August 23, 2016 through February 22, 2017 and required payment of commission to Mr. Livingstone even if the sale closed after the expiration of the listing period.
Thus, even if the Court were to find a satisfactory excuse for Defendant’s failure to file his declaration earlier, which the Court does not, consideration of Defendant’s belated evidence would not lead the Court to vacate the summary judgment granted in Plaintiff’s favor.
CONCLUSIONS AND ORDER
Defendant’s Motion to vacate judgment is DENIED.
Plaintiff is ordered to provide notice of this order and file proof of service of such.
DATED: January 16, 2020 ___________________________
Judge of the Superior Court
 Because Plaintiff’s opposition is untimely, the Court will decline to consider the opposition.
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