Preview
1 Jason E. Fellner - 245364
JFellner@mpbf.com
2 Kevin D. Cardona - 314033
KCardona@mpbf.com ELECTRONICALLY
3 MURPHY, PEARSON, BRADLEY & FEENEY
580 California Street, Suite 1100 FILED
Superior Court of California,
4 San Francisco, CA 94104-1001 County of San Francisco
Telephone: (415) 788-1900
5 Facsimile: (415) 393-8087 11/12/2020
Clerk of the Court
BY: EDNALEEN ALEGRE
6 Attorneys for Cross-Defendants Deputy Clerk
LUSCUTOFF, LENDORMY & ASSOCIATES and
7 JEAN-YVES LENDORMY
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO
10
LUSCUTOFF, LENDORMY & ASSOCIATES; Case No.: CGC-19-576483
11 and JEAN-YVES LENDORMY,
CROSS-DEFENDANTS LUSCUTOFF,
12 Plaintiffs, LENDORMY & ASSOCIATES AND
JEAN-YVES LENDORMY'S EX PARTE
13 v. APPLICATION FOR ORDER
SHORTENING TIME ALLOWING
14 OLIVIER AUFFRET; and VIRGINIE LECLAIR, MOTION FOR SUMMARY JUDGMENT
TO BE HEARD 27 DAYS BEFORE
15 Defendants. TRIAL; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT
16 THEREOF
OLIVIER AUFFRET; and VIRGINIE LECLAIR,
17
Cross-Complainants, EX PARTE HEARING
18 Date: November 13, 2020
v. Time: 11:00 a.m.
19 Dept: 302, Law & Motion
LUSCUTOFF, LENDORMY & ASSOCIATES;
20 JEAN-YVES LENDORMY; and Does 1 to Trial Date: February 22, 2021
100, inclusive,
21
Cross-Defendants.
22
23 ///
24 ///
25 ///
26 ///
27 ///
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION
2 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that, pursuant to California Rules of Court, Rules 3.1200-3.1207,
4 and San Francisco Local Rule 9, on November 13, 2020, at 11:00 a.m., in the Law & Motion
5 Department of the San Francisco Superior Court, Department 302, Cross-Defendants LUSCUTOFF,
6 LENDORMY & ASSOCIATES and JEAN-YVES LENDORMY (“Cross-Defendants” and
7 “Plaintiffs”) will move the Court for an ex parte order shortening time allowing Cross-Defendants’
8 Motion for Summary Judgment/Summary Adjudication (“MSJ”) against Cross-Complainants
9 OLIVIER AUFFRET and VIRGINIE LECLAIR’s (“Cross-Complainants” and “Defendants”) First
10 Amended Cross-Complaint to be heard 27 days before trial.
11 Cross-Defendants filed and electronically-served the MSJ via File & ServeXpress on all
12 parties, and via hand delivery as to the notice of MSJ to Cross-Complainants’ counsel on November 9,
13 2020, and all supporting papers of the MSJ via hand delivery to Cross-Complainants’ counsel on
14 November 10, 2020. When filing the MSJ, Cross-Defendants selected a hearing date of January 22,
15 2021. This hearing date is set 31 days before trial (trial date is February 22, 2021) in compliance with
16 C.C.P. § 437(a)(3), but would provide for less than a 75-day notice period. Alternatively, Cross-
17 Defendants also requested that the clerk set a hearing date of January 26, 2021, which they seek to set
18 via this Ex Parte with the Court’s approval. At the time of filing the MSJ, Cross-Defendants have not
19 received indication from the Court whether the MSJ was calendared for a date other than January 22,
20 2021.
21 Counsel for Cross-Defendants brings this Ex Parte Application pursuant to Code of Civil
22 Procedure §473(b), on the ground that this inadvertent filing error was due to his reliance on a mis-
23 calendared deadline reflected in his office’s team calendaring system. Cross-Defendants respectfully
24 request that the Court use its discretion to grant them relief from their counsel’s excusable neglect and
25 allow the MSJ to be heard on January 26, 2021, 27 days before trial. Allowing this MSJ to be heard 27
26 days before trial, instead of the usual 30 days, will not possibly cause Cross-Complainants any
27 prejudice, and will actually give Cross-Complainants additional time in which to respond and
28
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 represents a continuance of only two (2) court days from the noticed hearing date. Conversely, Cross-
2 Defendants will be prejudiced if they are precluded from having their MSJ heard, and the interests of
3 justice are best served by allowing Cross-Defendants the opportunity to have their MSJ heard on its
4 merits, particularly because the statute of limitations affirmative defense raised therein presents an
5 absolute bar to Cross-Complainants’ action so they should not be forced to incur substantial costs in
6 defending this cross-action on the merits at trial and requiring the Court to adjudicate the same issue at
7 trial.
8 In the event that the Court does not consider Cross-Defendants’ counsel’s reliance on the
9 erroneous deadline in his team calendaring system to be “excusable neglect” warranting discretionary
10 relief, counsel has submitted a declaration accepting complete fault for his error and moving for
11 mandatory relief under C.C.P. § 473(b), accepting whatever penalties the Court deems necessary
12 pursuant to C.C.P. § 473(c)(1).
13 Pursuant to California Rules of Court, Rule 3.1201, this Ex Parte Application is supported by
14 this application, the memorandum of points and authorities, the declaration of Kevin D. Cardona, and
15 the proposed order filed concurrently herewith.
16 Pursuant to California Rules of Court, Rule 3.1204, on November 10, 2020, counsel for Cross-
17 Defendants gave notice to all counsel of this Ex Parte Application and the hearing. (Declaration of
18 Kevin Cardona (“Cardona Decl.”) ¶3, Ex. 1.)
19 LEGAL ARGUMENT
20 Plaintiffs/Cross-Defendants formerly represented Defendants/Cross-Complainants in litigation
21 for eight (8) years to prosecute personal injury actions on their behalf in Monterey County Superior
22 Court. The litigation arose in 2009 from injuries that Defendants/Cross-Complainants suffered in a
23 serious bus accident while they were visiting California as French tourists. In total, Plaintiffs/Cross-
24 Defendants represented 34 French bus passengers, most of which joined as plaintiffs in a mass tort
25 personal injury action that Plaintiffs/Cross-Defendants filed against various defendants liable for
26 damages resulting from the bus accident. The litigation concluded in 2017, with the last disbursement
27 to Defendants/Cross-Complainants made on November 13, 2017.
28
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 In 2019, Plaintiffs realized that they had made an accounting error by not considering certain
2 prior disbursements to Defendants, which resulted in a net overpayment to the Defendants. On June 5,
3 2019, after Plaintiffs provided required notice of right to fee arbitration, they filed suit to recover the
4 overpaid funds from Defendants. (Cardona Decl. ¶4.) On November 27, 2019, Defendants filed a
5 retaliatory Cross-Complaint alleging causes of action for an accounting, disgorgement of fees, and
6 conversion, seeking in excess of what Plaintiffs’ claim as damages. (Cardona Decl. ¶5.) Cross-
7 Defendants, through their counsel, assessed that the Cross-Complaint pleads legal malpractice through
8 allegations of breach of fiduciary duties, even though Cross-Defendants did not label their causes of
9 action as such. It became clear to Cross-Defendants that the cross-action was filed more than a year
10 outside of the statute of limitations applicable to legal malpractice claims (C.C.P. § 340.6), but Cross-
11 Defendants needed to establish this fact through discovery to dispose the action by way of an MSJ.
12 (Cardona Decl. ¶6.)
13 Cross-Defendants encountered delay in obtaining the discovery needed to establish the statute
14 of limitations defense, including a delay of over two (2) months to obtain Cross-Complainants’
15 verifications to discovery responses which conclusively establish that the cross-action was filed outside
16 of the limitations period. (Cardona Decl. ¶6.) Once Cross-Complainants’ counsel provided the
17 verifications, it revealed that the verifications had already been executed months’ prior. (Cardona Decl.
18 ¶6.) The delay prevented Cross-Defendants’ from filing this MSJ much earlier as they had planned.
19 (Cardona Decl. ¶6.) In fact, earlier delay in Cross-Defendants’ efforts to obtain necessary discovery
20 already caused the parties to stipulate and move this court to continue the trial date once.
21 Once the necessary discovery was finally obtained, Cross-Defendants planned to hand-serve
22 and file the MSJ on November 13, 2020, which their counsel, Kevin Cardona, erroneously believed
23 was the deadline to serve the MSJ by U.S. mail. (Cardona Decl. ¶7.) Mr. Cardona’s team calendaring
24 system mis-calendared the last day to mail-serve the MSJ as ten days later than the actual date to serve
25 the MSJ by mail due to a clerical error that added a “1” to the November 3, 2020 date. (Cardona Decl.
26 ¶7.) The calendar thus erroneously reflected November 13, 2020 as the final day to mail-serve the
27 MSJ, when in fact the actual deadline to mail-serve was on November 3, 2020, and the last day to
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 hand-serve the MSJ and supporting papers, based on the trial date of February 22, 2021, was
2 November 6, 2020. (Cardona Decl. ¶7.) Counsel for Cross-Defendants discovered this calendaring
3 error on November 9, 2020, and filed and served the MSJ on the same day, on all parties, as soon as
4 possible. (Cardona Decl. ¶8.) On November 10, 2020, as soon as hard copies of all moving papers
5 could be produced, Cross-Defendants’ counsel hand-served all moving papers again on the office of
6 Cross-Complainants’ counsel. (Cardona Decl. ¶8, Ex. 2.)
7 As established by Mr. Cardona’s declaration in support hereof, his reliance on the accuracy of
8 the MSJ deadline reflected on his team calendar was reasonable and in good faith, as he has never
9 experienced a calendaring error resulting in a missed deadline such as this. (Cardona Decl. ¶¶9-12.)
10 Mr. Cardona inquired as to whether Cross-Complainants were willing to stipulate to have the MSJ
11 heard 27 days prior to trial, on January 26, 2021, but did not receive an indication either way, which
12 made the filing of this Ex Parte Application necessary. (Cardona Decl. ¶3.)
13 A. The Trial Court Has Discretion To Shorten Time To Hear Cross-Defendants’ Motion For
Summary Judgment/Summary Adjudication:
14
A trial court has discretion to shorten the 30-day period in which a motion for summary
15
judgment must be heard before trial where circumstances warrant. (Urshan v. Musicians' Credit Union
16
(2004) 120 Cal.App.4th 758, 764.) “Subdivision (a) [of CCP §437c] provides in pertinent part: ‘The
17
[summary judgment] motion may be made at any time after 60 days have elapsed since the general
18
appearance in the action or proceeding of each party against whom the motion is directed or at any
19
earlier time after the general appearance that the court, with or without notice and upon good cause
20
shown, may direct. [(2)] Notice of the motion and supporting papers shall be served on all other parties
21
to the action at least [] 75 days before the time appointed for hearing...[(3)] The motion shall be heard
22
no later than 30 days before the date of trial, unless the court for good cause orders otherwise.’ This
23
subdivision contains three minimum time requirements. However, the subdivision explicitly gives trial
24
courts discretion to shorten [] two of these time periods – the 60 days that must have elapsed since the
25
general appearance of a party against whom the motion is directed before a summary judgment motion
26
can be filed, and the minimum 30 days before trial when a summary judgment motion can be heard.”
27
[emphasis in original.] (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115.)
28
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 Allowing this MSJ to be heard 27 days before trial, instead of the usual 30 days, will not
2 possibly cause Cross-Complainants any prejudice – if anything, it is quite the opposite, as Cross-
3 Complainants will have additional time in which to respond to the MSJ, since the deadline for them to
4 respond is determined by the hearing date. (Cardona Decl. ¶13.) Further, the granting of this Ex Parte
5 Application results in a continuance of only two (2) court days from the date the MSJ was noticed at
6 the time of filing. (Cardona Decl. ¶13.) On the other hand, Cross-Defendants will be prejudiced if they
7 are precluded from having their MSJ heard, and are forced to incur the time and expense of defending
8 the groundless cross-claims against them at trial, which are legally barred by the applicable statute of
9 limitations affirmative defense (C.C.P. § 340.6). (Cardona Decl. ¶13.) The interests of justice are
10 clearly best served by allowing Cross-Defendants the opportunity to have their MSJ heard on its
11 merits. (Cardona Decl. ¶13.)
12 Accordingly, based on the explicit language of the statute itself and applicable California case
13 law, it is expressly within the power of the trial Court to hear a summary judgment motion less than 30
14 days before trial. (Code of Civil Procedure §437c; McMahon v. Superior Court, supra, at 115.)
15 B. The Court Should Hear Cross-Defendants’ Motion For Summary Judgment/Summary
Adjudication on January 26, 2021, Because Their Counsel’s Calendaring Error Amounts
16 To No More Than Excusable Neglect:
17 Under C.C.P. § 473(b), the Court has the discretion of granting relief where a reasonable
18 person could have made the same mistake, and Section 473(b) is subject to liberal construction. (Olson
19 v. Olson (1957) 148 Cal.App.2d 479, 482.) A party is entitled to relief under Section 473(b) on the
20 ground of excusable neglect, and doubts should be resolved in favor of an application for relief.
21 (Karlein v. Karlein (1951) 103 Cal.App.2d 496, 498 [holding that neither party should be deprived of a
22 hearing except when guilty of inexcusable neglect, and doubts should be resolved in favor of an
23 application to set aside a default judgment].) “To determine whether the mistake was excusable, the
24 court will inquire whether the same error might have been made by ‘a reasonably prudent person under
25 the same or similar circumstances’...” (Bettencourt v. Los Rios Community College Dist. (1986) 42
26 Cal.3d 270, 276.) “The purpose of the attorney affidavit provision ‘is to relieve the innocent client of
27 the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid
28
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 precipitating more litigation in the form of malpractice suits.’” [citations omitted.] (Lorenz v.
2 Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 990.1)
3 Here, it is reasonable under the circumstance that a prudent attorney would rely upon his
4 office’s team calendaring system, where that system had always in the past proved reliable and had
5 never before mis-calendared a procedural deadline such as this. (Cardona Decl. ¶¶9-12.) The subject
6 calendaring was performed during the coronavirus crisis at a time when calendaring was done
7 remotely, which is also a factor that cannot be ignored. (Cardona Decl. ¶10.) Clearly, in the course of
8 his practice, the reasonable and prudent litigation attorney must rely upon the accuracy of his firm’s
9 calendaring system, as it is simply not plausible for him to hand check each and every of the dozens of
10 litigation deadlines that cross his desk on a weekly basis. This is particularly true in situations – such
11 as this case – where the calendaring system has always in the past proven reliable, and where the
12 attorney had no reason to question the accuracy of the calendar.
13 There is ample authority establishing that a calendaring error on the part of an attorney – some
14 even much more egregious than the one at hand in this case – constitute excusable neglect warranting
15 discretionary relief from the court. (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483
16 [While not every mistake of an attorney constitutes excusable neglect, calendar errors by an attorney or
17 a member of his staff are excusable.]; Haviland v. Southern Cal. Edison Co. (1916) 172 Cal. 601, 605
18 [“It will hardly be claimed that the inadvertent entry of a wrong date in the book or journal in which
19 defendant's attorneys kept a record of the proceedings to be taken by them could not fairly have been
20 held by the trial court to furnish sufficient ground for relief under the remedial provisions of section
21 473”]; City of Los Angeles v. Board of Supervisors (1930) 105 Cal.App. 199 [Through oversight of
22 calendar clerk in legal division of city department, opening brief on appeal not timely filed]; H. G. B.
23
1 It should be noted that both the discretionary and mandatory grounds for relief articulated in C.C.P. § 473 have
24 been found applicable to summary judgment proceedings. (See Avila v. Chua (1997) 57 Cal.App.4th 860.) In Avila, the
plaintiff was a week late in filing opposition to a motion for summary judgment. Plaintiff tried and failed to obtain an ex
25 parte order continuing the hearing and later filed a motion for relief under C.C.P. § 473. The attorney's affidavit in support
of the C.C.P. § 473 motion stated the attorney had mistakenly calendared the date the response was due. The trial judge
26 found this was not “good cause” and denied the motion. The Court of Appeal concluded the situation was “directly
analogous to a default judgment” because “the court decided the matter on the other parties' pleadings [and] [t]here was no
27 litigation on the merits” (Id., at 868.) In accordance with this conclusion, the Appellate Court reversed the trial court order,
permitted the opposition to be filed and considered, and ordered the trial continued until the summary judgment motion was
28 resolved. (Id.)
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
1 Alexander & Co. v. Martz (1928) 90 Cal.App. 360 [Calendar clerk employed by attorney for eight
2 years became ill, neglected to enter time for filing brief]; Hagenkamp v. Equitable Life Assurance
3 Society (1916) 29 Cal.App. 713 [Attorney mistakenly entered trial date on his calendar as August 8
4 instead of August 7, and missed trial].)
5 Under such case authority, Mr. Cardona’s reliance on his team calendaring system likewise
6 constitutes “excusable neglect” within the meaning of C.C.P. § 473(b), which merits that the Court use
7 its discretion to grant relief from this error.
8 C. In the Alternative, Mr. Cardona Has Submitted a Declaration of Fault Moving for
Mandatory Relief Under Code of Civil Procedure §473(b):
9
10 In the event that the Court does not consider Mr. Cardona’s reliance on the erroneous deadline
11 in his team calendaring system to be “excusable neglect” warranting discretionary relief, he has
12 submitted a declaration hereto accepting complete fault for his error and moving for mandatory relief
13 under Code of Civil Procedure §473(b), accepting whatever penalties the Court deems necessary
14 pursuant to Section 437(c)(1). (Cardona Decl. ¶14.)
15 CONCLUSION
16 For all the foregoing reasons, Cross-Defendants respectfully request that the Court issue an
17 order shortening the minimum 30-days before trial when a summary judgment motion can be heard to
18 allow Cross-Defendants’ MSJ to be heard 27 days before trial, i.e. on January 26, 2021.
19
20
DATED: November 11, 2020 MURPHY, PEARSON, BRADLEY & FEENEY
21
22 By
Jason E. Fellner
23 Kevin D. Cardona
Attorneys for Cross-Defendants
24 LUSCUTOFF, LENDORMY & ASSOCIATES, and
JEAN-YVES LENDORMY
25
26
27
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CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE
HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Preview
1 Jason E. Fellner - 245364 JFellner@mpbf.com 2 Kevin D. Cardona - 314033 KCardona@mpbf.com ELECTRONICALLY 3 MURPHY, PEARSON, BRADLEY & FEENEY 580 California Street, Suite 1100 FILED Superior Court of California, 4 San Francisco, CA 94104-1001 County of San Francisco Telephone: (415) 788-1900 5 Facsimile: (415) 393-8087 11/12/2020 Clerk of the Court BY: EDNALEEN ALEGRE 6 Attorneys for Cross-Defendants Deputy Clerk LUSCUTOFF, LENDORMY & ASSOCIATES and 7 JEAN-YVES LENDORMY 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 LUSCUTOFF, LENDORMY & ASSOCIATES; Case No.: CGC-19-576483 11 and JEAN-YVES LENDORMY, CROSS-DEFENDANTS LUSCUTOFF, 12 Plaintiffs, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE 13 v. APPLICATION FOR ORDER SHORTENING TIME ALLOWING 14 OLIVIER AUFFRET; and VIRGINIE LECLAIR, MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE 15 Defendants. TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 16 THEREOF OLIVIER AUFFRET; and VIRGINIE LECLAIR, 17 Cross-Complainants, EX PARTE HEARING 18 Date: November 13, 2020 v. Time: 11:00 a.m. 19 Dept: 302, Law & Motion LUSCUTOFF, LENDORMY & ASSOCIATES; 20 JEAN-YVES LENDORMY; and Does 1 to Trial Date: February 22, 2021 100, inclusive, 21 Cross-Defendants. 22 23 /// 24 /// 25 /// 26 /// 27 /// 28 -1- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION 2 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that, pursuant to California Rules of Court, Rules 3.1200-3.1207, 4 and San Francisco Local Rule 9, on November 13, 2020, at 11:00 a.m., in the Law & Motion 5 Department of the San Francisco Superior Court, Department 302, Cross-Defendants LUSCUTOFF, 6 LENDORMY & ASSOCIATES and JEAN-YVES LENDORMY (“Cross-Defendants” and 7 “Plaintiffs”) will move the Court for an ex parte order shortening time allowing Cross-Defendants’ 8 Motion for Summary Judgment/Summary Adjudication (“MSJ”) against Cross-Complainants 9 OLIVIER AUFFRET and VIRGINIE LECLAIR’s (“Cross-Complainants” and “Defendants”) First 10 Amended Cross-Complaint to be heard 27 days before trial. 11 Cross-Defendants filed and electronically-served the MSJ via File & ServeXpress on all 12 parties, and via hand delivery as to the notice of MSJ to Cross-Complainants’ counsel on November 9, 13 2020, and all supporting papers of the MSJ via hand delivery to Cross-Complainants’ counsel on 14 November 10, 2020. When filing the MSJ, Cross-Defendants selected a hearing date of January 22, 15 2021. This hearing date is set 31 days before trial (trial date is February 22, 2021) in compliance with 16 C.C.P. § 437(a)(3), but would provide for less than a 75-day notice period. Alternatively, Cross- 17 Defendants also requested that the clerk set a hearing date of January 26, 2021, which they seek to set 18 via this Ex Parte with the Court’s approval. At the time of filing the MSJ, Cross-Defendants have not 19 received indication from the Court whether the MSJ was calendared for a date other than January 22, 20 2021. 21 Counsel for Cross-Defendants brings this Ex Parte Application pursuant to Code of Civil 22 Procedure §473(b), on the ground that this inadvertent filing error was due to his reliance on a mis- 23 calendared deadline reflected in his office’s team calendaring system. Cross-Defendants respectfully 24 request that the Court use its discretion to grant them relief from their counsel’s excusable neglect and 25 allow the MSJ to be heard on January 26, 2021, 27 days before trial. Allowing this MSJ to be heard 27 26 days before trial, instead of the usual 30 days, will not possibly cause Cross-Complainants any 27 prejudice, and will actually give Cross-Complainants additional time in which to respond and 28 -2- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 represents a continuance of only two (2) court days from the noticed hearing date. Conversely, Cross- 2 Defendants will be prejudiced if they are precluded from having their MSJ heard, and the interests of 3 justice are best served by allowing Cross-Defendants the opportunity to have their MSJ heard on its 4 merits, particularly because the statute of limitations affirmative defense raised therein presents an 5 absolute bar to Cross-Complainants’ action so they should not be forced to incur substantial costs in 6 defending this cross-action on the merits at trial and requiring the Court to adjudicate the same issue at 7 trial. 8 In the event that the Court does not consider Cross-Defendants’ counsel’s reliance on the 9 erroneous deadline in his team calendaring system to be “excusable neglect” warranting discretionary 10 relief, counsel has submitted a declaration accepting complete fault for his error and moving for 11 mandatory relief under C.C.P. § 473(b), accepting whatever penalties the Court deems necessary 12 pursuant to C.C.P. § 473(c)(1). 13 Pursuant to California Rules of Court, Rule 3.1201, this Ex Parte Application is supported by 14 this application, the memorandum of points and authorities, the declaration of Kevin D. Cardona, and 15 the proposed order filed concurrently herewith. 16 Pursuant to California Rules of Court, Rule 3.1204, on November 10, 2020, counsel for Cross- 17 Defendants gave notice to all counsel of this Ex Parte Application and the hearing. (Declaration of 18 Kevin Cardona (“Cardona Decl.”) ¶3, Ex. 1.) 19 LEGAL ARGUMENT 20 Plaintiffs/Cross-Defendants formerly represented Defendants/Cross-Complainants in litigation 21 for eight (8) years to prosecute personal injury actions on their behalf in Monterey County Superior 22 Court. The litigation arose in 2009 from injuries that Defendants/Cross-Complainants suffered in a 23 serious bus accident while they were visiting California as French tourists. In total, Plaintiffs/Cross- 24 Defendants represented 34 French bus passengers, most of which joined as plaintiffs in a mass tort 25 personal injury action that Plaintiffs/Cross-Defendants filed against various defendants liable for 26 damages resulting from the bus accident. The litigation concluded in 2017, with the last disbursement 27 to Defendants/Cross-Complainants made on November 13, 2017. 28 -3- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 In 2019, Plaintiffs realized that they had made an accounting error by not considering certain 2 prior disbursements to Defendants, which resulted in a net overpayment to the Defendants. On June 5, 3 2019, after Plaintiffs provided required notice of right to fee arbitration, they filed suit to recover the 4 overpaid funds from Defendants. (Cardona Decl. ¶4.) On November 27, 2019, Defendants filed a 5 retaliatory Cross-Complaint alleging causes of action for an accounting, disgorgement of fees, and 6 conversion, seeking in excess of what Plaintiffs’ claim as damages. (Cardona Decl. ¶5.) Cross- 7 Defendants, through their counsel, assessed that the Cross-Complaint pleads legal malpractice through 8 allegations of breach of fiduciary duties, even though Cross-Defendants did not label their causes of 9 action as such. It became clear to Cross-Defendants that the cross-action was filed more than a year 10 outside of the statute of limitations applicable to legal malpractice claims (C.C.P. § 340.6), but Cross- 11 Defendants needed to establish this fact through discovery to dispose the action by way of an MSJ. 12 (Cardona Decl. ¶6.) 13 Cross-Defendants encountered delay in obtaining the discovery needed to establish the statute 14 of limitations defense, including a delay of over two (2) months to obtain Cross-Complainants’ 15 verifications to discovery responses which conclusively establish that the cross-action was filed outside 16 of the limitations period. (Cardona Decl. ¶6.) Once Cross-Complainants’ counsel provided the 17 verifications, it revealed that the verifications had already been executed months’ prior. (Cardona Decl. 18 ¶6.) The delay prevented Cross-Defendants’ from filing this MSJ much earlier as they had planned. 19 (Cardona Decl. ¶6.) In fact, earlier delay in Cross-Defendants’ efforts to obtain necessary discovery 20 already caused the parties to stipulate and move this court to continue the trial date once. 21 Once the necessary discovery was finally obtained, Cross-Defendants planned to hand-serve 22 and file the MSJ on November 13, 2020, which their counsel, Kevin Cardona, erroneously believed 23 was the deadline to serve the MSJ by U.S. mail. (Cardona Decl. ¶7.) Mr. Cardona’s team calendaring 24 system mis-calendared the last day to mail-serve the MSJ as ten days later than the actual date to serve 25 the MSJ by mail due to a clerical error that added a “1” to the November 3, 2020 date. (Cardona Decl. 26 ¶7.) The calendar thus erroneously reflected November 13, 2020 as the final day to mail-serve the 27 MSJ, when in fact the actual deadline to mail-serve was on November 3, 2020, and the last day to 28 -4- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 hand-serve the MSJ and supporting papers, based on the trial date of February 22, 2021, was 2 November 6, 2020. (Cardona Decl. ¶7.) Counsel for Cross-Defendants discovered this calendaring 3 error on November 9, 2020, and filed and served the MSJ on the same day, on all parties, as soon as 4 possible. (Cardona Decl. ¶8.) On November 10, 2020, as soon as hard copies of all moving papers 5 could be produced, Cross-Defendants’ counsel hand-served all moving papers again on the office of 6 Cross-Complainants’ counsel. (Cardona Decl. ¶8, Ex. 2.) 7 As established by Mr. Cardona’s declaration in support hereof, his reliance on the accuracy of 8 the MSJ deadline reflected on his team calendar was reasonable and in good faith, as he has never 9 experienced a calendaring error resulting in a missed deadline such as this. (Cardona Decl. ¶¶9-12.) 10 Mr. Cardona inquired as to whether Cross-Complainants were willing to stipulate to have the MSJ 11 heard 27 days prior to trial, on January 26, 2021, but did not receive an indication either way, which 12 made the filing of this Ex Parte Application necessary. (Cardona Decl. ¶3.) 13 A. The Trial Court Has Discretion To Shorten Time To Hear Cross-Defendants’ Motion For Summary Judgment/Summary Adjudication: 14 A trial court has discretion to shorten the 30-day period in which a motion for summary 15 judgment must be heard before trial where circumstances warrant. (Urshan v. Musicians' Credit Union 16 (2004) 120 Cal.App.4th 758, 764.) “Subdivision (a) [of CCP §437c] provides in pertinent part: ‘The 17 [summary judgment] motion may be made at any time after 60 days have elapsed since the general 18 appearance in the action or proceeding of each party against whom the motion is directed or at any 19 earlier time after the general appearance that the court, with or without notice and upon good cause 20 shown, may direct. [(2)] Notice of the motion and supporting papers shall be served on all other parties 21 to the action at least [] 75 days before the time appointed for hearing...[(3)] The motion shall be heard 22 no later than 30 days before the date of trial, unless the court for good cause orders otherwise.’ This 23 subdivision contains three minimum time requirements. However, the subdivision explicitly gives trial 24 courts discretion to shorten [] two of these time periods – the 60 days that must have elapsed since the 25 general appearance of a party against whom the motion is directed before a summary judgment motion 26 can be filed, and the minimum 30 days before trial when a summary judgment motion can be heard.” 27 [emphasis in original.] (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115.) 28 -5- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 Allowing this MSJ to be heard 27 days before trial, instead of the usual 30 days, will not 2 possibly cause Cross-Complainants any prejudice – if anything, it is quite the opposite, as Cross- 3 Complainants will have additional time in which to respond to the MSJ, since the deadline for them to 4 respond is determined by the hearing date. (Cardona Decl. ¶13.) Further, the granting of this Ex Parte 5 Application results in a continuance of only two (2) court days from the date the MSJ was noticed at 6 the time of filing. (Cardona Decl. ¶13.) On the other hand, Cross-Defendants will be prejudiced if they 7 are precluded from having their MSJ heard, and are forced to incur the time and expense of defending 8 the groundless cross-claims against them at trial, which are legally barred by the applicable statute of 9 limitations affirmative defense (C.C.P. § 340.6). (Cardona Decl. ¶13.) The interests of justice are 10 clearly best served by allowing Cross-Defendants the opportunity to have their MSJ heard on its 11 merits. (Cardona Decl. ¶13.) 12 Accordingly, based on the explicit language of the statute itself and applicable California case 13 law, it is expressly within the power of the trial Court to hear a summary judgment motion less than 30 14 days before trial. (Code of Civil Procedure §437c; McMahon v. Superior Court, supra, at 115.) 15 B. The Court Should Hear Cross-Defendants’ Motion For Summary Judgment/Summary Adjudication on January 26, 2021, Because Their Counsel’s Calendaring Error Amounts 16 To No More Than Excusable Neglect: 17 Under C.C.P. § 473(b), the Court has the discretion of granting relief where a reasonable 18 person could have made the same mistake, and Section 473(b) is subject to liberal construction. (Olson 19 v. Olson (1957) 148 Cal.App.2d 479, 482.) A party is entitled to relief under Section 473(b) on the 20 ground of excusable neglect, and doubts should be resolved in favor of an application for relief. 21 (Karlein v. Karlein (1951) 103 Cal.App.2d 496, 498 [holding that neither party should be deprived of a 22 hearing except when guilty of inexcusable neglect, and doubts should be resolved in favor of an 23 application to set aside a default judgment].) “To determine whether the mistake was excusable, the 24 court will inquire whether the same error might have been made by ‘a reasonably prudent person under 25 the same or similar circumstances’...” (Bettencourt v. Los Rios Community College Dist. (1986) 42 26 Cal.3d 270, 276.) “The purpose of the attorney affidavit provision ‘is to relieve the innocent client of 27 the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid 28 -6- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 precipitating more litigation in the form of malpractice suits.’” [citations omitted.] (Lorenz v. 2 Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 990.1) 3 Here, it is reasonable under the circumstance that a prudent attorney would rely upon his 4 office’s team calendaring system, where that system had always in the past proved reliable and had 5 never before mis-calendared a procedural deadline such as this. (Cardona Decl. ¶¶9-12.) The subject 6 calendaring was performed during the coronavirus crisis at a time when calendaring was done 7 remotely, which is also a factor that cannot be ignored. (Cardona Decl. ¶10.) Clearly, in the course of 8 his practice, the reasonable and prudent litigation attorney must rely upon the accuracy of his firm’s 9 calendaring system, as it is simply not plausible for him to hand check each and every of the dozens of 10 litigation deadlines that cross his desk on a weekly basis. This is particularly true in situations – such 11 as this case – where the calendaring system has always in the past proven reliable, and where the 12 attorney had no reason to question the accuracy of the calendar. 13 There is ample authority establishing that a calendaring error on the part of an attorney – some 14 even much more egregious than the one at hand in this case – constitute excusable neglect warranting 15 discretionary relief from the court. (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483 16 [While not every mistake of an attorney constitutes excusable neglect, calendar errors by an attorney or 17 a member of his staff are excusable.]; Haviland v. Southern Cal. Edison Co. (1916) 172 Cal. 601, 605 18 [“It will hardly be claimed that the inadvertent entry of a wrong date in the book or journal in which 19 defendant's attorneys kept a record of the proceedings to be taken by them could not fairly have been 20 held by the trial court to furnish sufficient ground for relief under the remedial provisions of section 21 473”]; City of Los Angeles v. Board of Supervisors (1930) 105 Cal.App. 199 [Through oversight of 22 calendar clerk in legal division of city department, opening brief on appeal not timely filed]; H. G. B. 23 1 It should be noted that both the discretionary and mandatory grounds for relief articulated in C.C.P. § 473 have 24 been found applicable to summary judgment proceedings. (See Avila v. Chua (1997) 57 Cal.App.4th 860.) In Avila, the plaintiff was a week late in filing opposition to a motion for summary judgment. Plaintiff tried and failed to obtain an ex 25 parte order continuing the hearing and later filed a motion for relief under C.C.P. § 473. The attorney's affidavit in support of the C.C.P. § 473 motion stated the attorney had mistakenly calendared the date the response was due. The trial judge 26 found this was not “good cause” and denied the motion. The Court of Appeal concluded the situation was “directly analogous to a default judgment” because “the court decided the matter on the other parties' pleadings [and] [t]here was no 27 litigation on the merits” (Id., at 868.) In accordance with this conclusion, the Appellate Court reversed the trial court order, permitted the opposition to be filed and considered, and ordered the trial continued until the summary judgment motion was 28 resolved. (Id.) -7- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 Alexander & Co. v. Martz (1928) 90 Cal.App. 360 [Calendar clerk employed by attorney for eight 2 years became ill, neglected to enter time for filing brief]; Hagenkamp v. Equitable Life Assurance 3 Society (1916) 29 Cal.App. 713 [Attorney mistakenly entered trial date on his calendar as August 8 4 instead of August 7, and missed trial].) 5 Under such case authority, Mr. Cardona’s reliance on his team calendaring system likewise 6 constitutes “excusable neglect” within the meaning of C.C.P. § 473(b), which merits that the Court use 7 its discretion to grant relief from this error. 8 C. In the Alternative, Mr. Cardona Has Submitted a Declaration of Fault Moving for Mandatory Relief Under Code of Civil Procedure §473(b): 9 10 In the event that the Court does not consider Mr. Cardona’s reliance on the erroneous deadline 11 in his team calendaring system to be “excusable neglect” warranting discretionary relief, he has 12 submitted a declaration hereto accepting complete fault for his error and moving for mandatory relief 13 under Code of Civil Procedure §473(b), accepting whatever penalties the Court deems necessary 14 pursuant to Section 437(c)(1). (Cardona Decl. ¶14.) 15 CONCLUSION 16 For all the foregoing reasons, Cross-Defendants respectfully request that the Court issue an 17 order shortening the minimum 30-days before trial when a summary judgment motion can be heard to 18 allow Cross-Defendants’ MSJ to be heard 27 days before trial, i.e. on January 26, 2021. 19 20 DATED: November 11, 2020 MURPHY, PEARSON, BRADLEY & FEENEY 21 22 By Jason E. Fellner 23 Kevin D. Cardona Attorneys for Cross-Defendants 24 LUSCUTOFF, LENDORMY & ASSOCIATES, and JEAN-YVES LENDORMY 25 26 27 28 -8- CROSS-DEFENDANTS LUSCUTOFF, LENDORMY & ASSOCIATES AND JEAN-YVES LENDORMY'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ALLOWING MOTION FOR SUMMARY JUDGMENT TO BE HEARD 27 DAYS BEFORE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF