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Date: 04-15-2003

Case Style: Erika K. Luri v. Robert Greenwald

Case Number: B154259

Judge: Unknown

Court: California Court of Appeals, Second Appellate District

Plaintiff's Attorney:

Hirschberg & Friedman, Michael N. Friedman and Leslie D. Hirschberg for Plaintiff and Appellant.

Defendant's Attorney:

Freedman & Taitelman, Los Angeles, California, Michael A. Taitelman and John D. Guerrini for Defendants and Respondents Robert Greenwald and Heidi Frey Greenwald.

David L. Krogh, Mission Viejo, California, for Defendants and Respondents Jon Douglas Company, Linda Lackey, and Coldwell Banker Residential Brokerage Company.


Luri purchased a duplex from the Greenwalds in 1997 in a sale in which the real estate defendants acted as the sellers' agents. Luri subsequently sued the Greenwalds and the real estate defendants, alleging that in the course of the sale they committed fraud; concealment; conspiracy to defraud; and violations of the Civil Code's real estate disclosure provisions, Civil Code section 1102 et seq. The Greenwalds filed a motion for summary judgment on July 10, 2001, with a hearing on their motion set for August 8, 2001. The real estate defendants filed a motion for summary judgment on July 18, 2001, with the hearing on that motion scheduled for August 15, 2001. The hearing on the Greenwalds' motion for summary judgment was postponed until August 15, 2001 so that the two summary judgment motions could be heard together.

Luri's opposition papers to the summary judgment motions were required to be filed by August 1, 2001 (Code Civ. Proc., § 437c, subd. (b)), but she failed to file any oppositions. On August 10, 2001, Luri's attorney Sheldon Kaufman (Kaufman) submitted an ex parte application for a continuance of the hearing on the summary judgment motions and a corresponding extension of his time to file oppositions to the motions. In a declaration accompanying the application, Kaufman declared that although he "worked many long hours each day to attempt to prepare meaningful and consistent opposition to the two separate motions by August 1, 2001," he could not complete them in a timely manner. He represented to the court that "[t]he opposition to both motions is about 65% completed and can be served and filed by August 15, 2001, at the latest, if this matter is continued until August 28, 2001, at 9:00 a.m. . . . "

The defendants opposed Luri's application for a continuance on the ground that a continuance should not be needed because the summary judgment motions raised only one issue - the statute of limitations. The trial court granted Luri's application and continued the hearings on the summary judgment motions to August 30, 2001. The trial court stated that Luri's oppositions would now be due within "the statutory period of time before 8/30/01" - under Code of Civil Procedure section 437c, subdivision (b), not less than 14 days preceding the hearing date. The court also advised Luri's counsel "that there will be no further continuances or extensions."

Despite the extension granted by the court and the court's warning, the new due date for Luri's oppositions passed without service or filing of any oppositions to the summary judgment motions. As of the date of the summary judgment motions hearing, no oppositions had been filed, and Luri and her counsel failed to appear for the hearing. The trial court's August 30, 2001 minute order reads, "Before the hearing, the Courtroom Assistant receives a call from Plaintiff counsel's secretary stating that Plaintiff's counsel will be at least one hour late to the hearing [scheduled for 9:00 a.m.]. [] The Motions are called for hearing at 9:14 a.m. There is no appearance on behalf of the Plaintiff. [] The court has received no opposition to the Motions."

The trial court conducted a hearing on the unopposed summary judgment motions and granted summary judgments to the Greenwalds and the real estate defendants. The court's August 30, 2001 minute order notes that "[t]here is no appearance by the Plaintiff when the court concludes its ruling at 9:24 a.m." Kaufman arrived at the courtroom later that morning at approximately 9:50 a.m.

On September 13, 2001, Luri filed papers opposing the summary judgment motions that had already been heard and ruled upon on August 30, 2001. On September 17, 2001, Luri filed a motion for reconsideration of the summary judgment rulings under Code of Civil Procedure section 1008; in the alternative, Luri moved "under 473 CCP for relief from orders granting summary judgments to said defendants, upon the grounds of excusable neglect."

The portion of the memorandum of points and authorities devoted to relief under section 473 read in its entirety as follows: "Motion under Section 473 CCP [] (Excusable Neglect) [] The evidence and argument for the grounds of ex[]cusable neglect both as to the non-appearance and the filing of Opposition is provided by Declaration of Sheldon M. Kaufman filed concurrently her[e]with." No notice of motion accompanied this motion.

Kaufman's accompanying declaration stated that he arrived in the courtroom with "fully completed opposition documents" at 9:50 a.m. on August 30, 2001, and was told that the matter had already been heard. Concerning the failure to file the opposition papers in a timely manner, Kaufman stated only, "Declarant is aware that on August 10, 2001, in support of an Ex Parte Application for a Continuance of the hearing on the Motions for Summary Judgment until August 30, 2001, Declarant stated that the Opposition was about ‘65% completed' and could be filed and served by August 15, 2001[] if the matter was continued until August 28, 2001. This assertion by Declarant proved to be overly optimistic in light of the fact that the Opposition was not in fact completed until August 29, 2001. This delay was caused in part by the complexity and intricacy of the Opposition, and, moreover, by extreme fatigue of Declarant induced by the side effects of a prescription cholesterol-lowering drug (‘Baycol') taken by Declarant, and recently recalled. Further, said drug has possibly caused Declarant liver damage, a matter not yet resolved." In conjunction with his reply brief, Kaufman provided a supplemental declaration detailing his medical history with Baycol, but the declaration did not provide any explanation of how the medication had prevented him from performing legal work. Luri stated in a declaration that Kaufman and she were late for the summary judgment hearing because of an automobile problem.

After a hearing on October 15, 2001, Luri's motion under Code of Civil Procedure sections 1008 and 473 was denied. Judgments were entered in favor of the defendants, and this appeal followed.


Section 473, subdivision (b) provides for two distinct types of relief - commonly differentiated as "discretionary" and "mandatory" - from certain prior actions or proceedings in the trial court. "Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,' the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against' a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,' the court shall vacate any ‘resulting default judgment or dismissal entered.'" (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) Applications seeking relief under the mandatory provision of section 473 must be "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (Code Civ. Proc., § 473, subd. (b).) The mandatory provision further adds that "whenever relief is granted based on an attorney affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." (Ibid.)

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: The judgment is affirmed. Respondents shall recover their costs on appeal.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Digested by K. Morlan

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