Motion to Set Aside Summary Judgment (Judge Michael E. Whitaker)

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Case Number: 20STCV42570    Hearing Date: June 25, 2025    Dept: 207

TENTATIVE RULING

DEPARTMENT          207

HEARING DATE       June 25, 2025

CASE NUMBER        20STCV42570

MOTION                    Motion to Set Aside Summary Judgment

MOVING PARTY      Plaintiff Indiana Retana

OPPOSING PARTY   Defendants Jonathan Nissanoff, M.D. and Advanced Orthopedic Center, Inc. (erroneously sued as Orthopedic Specialist of Southern California)

MOTION

This case arises from allegations of unconsented medical treatment.

On November 5, 2020, Plaintiff Indiana Retana (“Plaintiff”) brought suit against Defendants Jonathan Nissanoff M.D. and Orthopedic Specialist of Southern California (“Defendants”) alleging two causes of action for (1) medical negligence and (2) battery.

On June 28, 2023, the Court granted Defendants’ unopposed motion for summary judgment.  Judgment was entered in favor of Defendants on July 6, 2023.  On August 16, Plaintiff filed a notice of appeal, which was dismissed on November 6, 2023 due to Plaintiff-Appellant’s default, and the appellate court issued the remittitur on January 19, 2024.

Plaintiff now moves to set aside the judgment pursuant to the discretionary provision of Code of Civil Procedure section 473, subdivision (b) and/or pursuant to the Court’s inherent authority to grant equitable relief.  Defendants oppose the motion.

ANALYSIS

  1.           DISCRETIONARY AND MANDATORY RELIEF

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence:  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.”  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].)

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).)  “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice.  Because 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.  Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.”  (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

  1. DISCRETIONARY RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “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.”

  1. MANDATORY RELIEF

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, subd. (b).)  “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants’ showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.”  (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).)  “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.”  (Ibid.)

Plaintiff contends that the failure to oppose Defendant’s motion for summary judgment and the default in the resulting appeal were due to Plaintiff’s former counsel’s improper abandonment of the case at a critical stage of the litigation, unbeknownst to Plaintiff.

In support, Plaintiff advances her declaration, which states:

  1. On July 19, 2023, this Court granted summary judgment in favor of the Defendants. I later learned that my former attorney failed to file any opposition to Defendants’ motion for summary judgment.
  2. At the time of the motion, I was unaware that my attorney had missed the deadline to oppose it. I relied on my attorney to handle all matters in the case diligently and competently. He did not inform me of the pending summary judgment motion or his failure to respond to it.
  3. After judgment was entered against me, my attorney filed a Notice of Appeal. However, he took no further action on my behalf. He failed to file a Notice Designating the Record on Appeal, a Certificate of Interested Parties, or an Opening Brief. As a result, the Court of Appeal dismissed the appeal on November 6, 2023.
  4. I never instructed my attorney to abandon my case or to let the appeal lapse. I was never informed that he failed to complete the appellate requirements. I first learned of the dismissal only after the appeal had already been lost.
  5. Since then, I have discovered that my former attorney’s conduct—his failure to oppose the motion for summary judgment and his abandonment of the appeal—constitutes what California law defines as “positive misconduct.” I understand that this level of negligence may justify setting aside a judgment under Code of Civil Procedure section 473(b), as well as under the Court’s inherent equitable powers.
  6. Had my attorney properly opposed the summary judgment motion, I would have presented evidence showing that triable issues of material fact existed. I was denied the opportunity to do so solely due to my attorney’s inaction. The appellate court could not review the merits of the judgment because no opposition was ever filed.
  7. I believe that even a properly filed appeal would likely have been unsuccessful, since the trial court ruled without opposition and the appellate court would have had no factual record to review. This made it even more important to seek relief directly from the trial court.
  8. In addition to my attorney’s abandonment, I was physically and functionally unable to take prompt action. On October 25, 2019, I was in an accident that caused lasting injuries, including pectoral muscle damage. As a result of these injuries, I required several surgeries during the relevant time period:
  • On May 1, 2023, I underwent removal of a breast due to damage from the accident.
  • On July 1, 2024, I underwent a procedure to place a tissue expander.
  • On September 16, 2024, I had breast reconstruction surgery.
  1. Each of these procedures required extensive recovery periods. During those times, I was in physical pain, limited in mobility, and unable to attend to legal matters. I also required ongoing post-surgical care and assistance with day-to-day activities.
  2. Because of my medical condition, I could not research or draft legal filings on my own. I had to rely on third parties to help with legal research and preparation. That need for assistance also delayed my ability to file this motion.
  3. Despite all of these challenges, I have acted in good faith and have moved to set aside the judgment as soon as I was physically and practically able to do so.
  4. I respectfully ask the Court to set aside the July 19, 2023 summary judgment and to restore this case to active status so that I may be allowed to present my evidence and have my claims heard on the merits.

(Retana Decl. ¶¶ 2-13.)

Several cases have considered the applicability of Section 473 to motions for summary judgment.

In Avila v. Chua (1997) 57 Cal.App.4th 860 (hereafter Avila), a medical malpractice case, the plaintiff had filed an untimely opposition to the hospital’s motion for summary judgment.  (Id. at p. 864.)  The trial court denied the plaintiff’s request to continue the hearing on the motion for summary judgment, struck the untimely filed opposition, and ruled in favor of the hospital on the then-unopposed motion for summary judgment.  (Ibid.)

The plaintiff moved to set aside the order, pursuant to Section 473, on the grounds that the failure to timely oppose the motion was due to counsel’s calendaring error.  (Avila, supra, 57 Cal.App.4th at p. 865.)  The trial court denied the motion on the grounds that counsel had not demonstrated an excusable mistake.  (Ibid.)  The appellate court reversed, however, holding that the mandatory provisions of Section 473 apply to a motion for summary judgment where there has been no “litigation and adjudication on the merits” which is “directly analogous to a default judgment.”  (Id. at p. 867-868.)  And because the mandatory provision applied, counsel need not show that the mistake, inadvertence, surprise, or neglect was excusable.  (Id. at pp. 868-869.)

However, in English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 (hereafter IKON), the appellate court criticized the Avila decision:

Based on our construction of the statute, the Avila court’s conclusion that a summary judgment is “directly analogous to a default judgment” when the opposing party fails to file a timely opposition to the motion misses the point. (Avila v. Chua, supra, 57 Cal.App.4th at p. 868.)  It is not an appellate court’s task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations “analogous” to those the statute explicitly addresses. Rather, an appellate court’s task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves. For the reasons already given, the terms “default” and “default judgment,” as used in the mandatory provision of section 473(b), cannot reasonably be construed to encompass a summary judgment, regardless of whatever omissions or failures by counsel may have preceded the entry of that judgment.

(English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 144.)  IKON court further explained that the same is true for the statutory construction of the word “dismissal”:

Applying this principle of construction to the mandatory provision of section 473(b), we construe the word “dismissal” as having a limited meaning similar to the term “default judgment.” This approach is supported by the history of the mandatory provision, set out above. As Justice Epstein explained in his dissenting opinion in Yeap: “The purpose of the [1992] amendment was to give plaintiffs the functional equivalent of the ‘default’ provision for defendants ….” (Yeap v. Leake, supra, 60 Cal.App.4th at p. 604 (dis. opn. of Epstein, J.).) Thus, where a defendant was entitled to mandatory relief from a “default” or “default judgment” resulting from attorney mistake, inadvertence, surprise, or neglect, a plaintiff would be entitled to mandatory relief from a “dismissal” resulting from similar circumstances.

(Id. at p. 145.)  Further,

By taking our statement about the purpose of the mandatory provision out of context, the Avila court was able to use that statement to justify extending the reach of the provision beyond the language of the statute itself and beyond what the Legislature intended when it added the word “dismissal” to the statute. At the same time, the Avila court avoided directly addressing the issue we address here—whether the Legislature intended the word “dismissal” to encompass a summary judgment entered against a plaintiff.

(Id. at p. 147.)  Consequently, IKON concluded that a summary judgment is not a “default” or a “dismissal” under the mandatory provisions of Section 473.

Similarly, in Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 (hereafter Prieto), the appellate court affirmed the holding in IKON that “a motion brought under the mandatory, ‘attorney-fault’ provision of section 473(b) cannot seek to set aside an order granting summary judgment.  More accurately, the mandatory provision of section 473(b) does not empower a court to set aside a summary judgment.”  (Id. at p. 295.)  As Prieto explained:

the mandatory relief provision [of section 473(b) was enacted because trial courts were found to be reluctant to grant discretionary relief from default judgments because of increased case loads. The policy goal sought to be effectuated was to relieve innocent clients from losing their day in court because the attorneys they hired to defend them inexcusably failed to file responsive papers. To achieve this goal, the Legislature expressly limited the scope of the mandatory provision of section 473(b) to require relief from default judgments only. The only expansion of the mandatory provision since its enactment in 1988 has been to make the provision available to plaintiffs. Thus, the Legislature has shown no interest in expanding the type of case to which the mandatory relief provision applies to cases beyond the relatively narrow category of default judgments and dismissals.

(Prieto, supra, 132 Cal.App.4th at pp. 295-296 [cleaned up].)  Notably, in the case of summary judgment, allowing a party to wait six months and then file a mandatory motion to set aside/vacate, unreasonably delays resolution of the dispute through trial.  (Id. at pp. 296-297.)

Notwithstanding, “In the appropriate circumstances, of course, relief from a summary judgment may be available to either a plaintiff or a defendant under the discretionary provision of section 473(b).  This is so because discretionary relief under the statute is not limited to defaults, default judgments, and dismissals, but is available from any judgment.”  (IKON, supra, 94 Cal.App.4th at p. 149, citation omitted.)

Because Plaintiff seeks relief pursuant to the discretionary provision, such relief may be available, if the motion is otherwise timely and meritorious.

As for timing, the party or the legal representative seeking relief pursuant to Code of Civil Procedure section 473, subdivision (b) must do so “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), emphasis added; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted & emphasis added.)

Because the six-month limit is mandatory and jurisdictional, the Court has no power to grant Plaintiff relief pursuant to Code of Civil Procedure section 473, subdivision (b).

  1.           EQUITABLE RELIEF

“Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.  Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.  In contrast, the term extrinsic mistake is broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when among other things a mistake led a court to do what it never intended.”  (Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97-98 [cleaned up]; accord Rappleyea, supra, at p. 981 [“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable”].)

Further, the Bae court held:  “A party may seek equitable relief from a default and default judgment by filing a motion in the pertinent action or initiating an independent action.  A motion brought to do so may be made on such ground even though the statutory period for relief under Code of Civil Procedure section 473, subdivision (b) has run.  Because a motion for equitable relief is direct, rather than collateral, extrinsic fraud or mistake may be demonstrated by evidence not included in the judgment roll or record relating to the judgment.”  (Bae, supra, at p. 98, [cleaned up].)

“[R]relief under the doctrine of extrinsic mistake is subject to a stringent three-part formula. As explained in Rappleyea, to set aside a default judgment based upon extrinsic mistake one must satisfy three elements.  First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action.  Last, the moving party must demonstrate diligence in seeking to set aside the default once discovered.”  (Bae, supra, at p. 100 [cleaned up]; see also Rappleyea, supra, at p. 982 [equitable relief should be granted in only exceptional circumstances].)

Thus, the Court will address Plaintiff’s claim under the three-prong test.

Has Plaintiff demonstrated that he has a meritorious defense?  The short answer is No.

Although Plaintiff has argued that the second prong is satisfied because an attorney’s abandonment of the case can constitute an extrinsic mistake for purposes of setting aside the judgment and Plaintiff has argued that the third prong is satisfied because she acted as reasonably diligent as her medical condition allowed, Plaintiff has not presented the Court with any evidence or argument about the underlying merits of the defense Plaintiff would have presented in opposition to the Motion for Summary Judgment, had her counsel not allegedly abandoned Plaintiff or the case.

“[T]he legal standard of care required by doctors is the standard of practice required by their own profession.  The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.  Thus, liability is not found, and the label of malpractice is not placed upon a physician’s actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 [cleaned up].)

Accordingly, expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care.  (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman’ ”].)  As the Court of Appeal has held, in reversing summary judgments for medical professionals:  “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony.  California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.”  (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [cleaned up].)

Here, six days before the hearing on the motion for summary judgment, Plaintiff filed an ex parte application to continue (1) the hearing on the Motion for Summary Judgment; (2) trial; and (3) all related discovery and motion cut-off dates commensurate with the trial date.  The grounds provided were that “Plaintiff’s expert, while originally supportive, has not been able to sign the declaration in support of plaintiff’s action and I have been desperately looking for a new expert” but “I have been unable to devote sufficient time to this case due a [sic] heavy course load as a professor at three different institutions, as well as my own practice load of cases and occasionally sitting as a temporary judge.  As a result, I have been unable to serve updated discovery.”  (Attorney Declaration of Matthew R. Rungaitis, June 23, 2023, at ¶¶ 5-6.)

The Court denied Plaintiff’s request to continue the summary judgment hearing date on the grounds that Plaintiff failed to demonstrate good cause for the requested continuance.  (Minute Order, Jun. 29, 2023.)  Thus, it appears Plaintiff’s counsel did not file an opposition to the motion for summary judgment because he was unable to find an expert to sign a declaration indicating that Defendants breached the standard of care.  As such, it appears the summary judgment was granted not because of counsel’s failure to oppose it, but because of issues related to the merits of Plaintiff’s claims.

More important, in the context of this motion, Plaintiff has not advanced any argument or evidence that would demonstrate that she has or had meritorious claims against Defendants.

Because the Court finds Plaintiff has failed to satisfy the first prong, it does not analyze the sufficiency of the other two prongs.

CONCLUSION

            For the foregoing reasons, the Court denies Plaintiff’s motion to set aside the summary judgment.

            Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.