Preview
1 DAVrD R. GzuFFTTH, ESQ. (SBN 170t72)
GRIFFITH HORN & SHEEHAN, LLP
2 1530 Humboldt Road, Suite 3
Chico, California 95928
a
J Telephone: (530) 812-1 000 8/2/2021
Facsimile: (530) 809-1 093
4 Email : david@davidgriffithlaw.com
5 Attorney for Plaintiff,
GREG HUMPHERYS FARM & EQUIPMENT, INC.
6
7
8 THE SUPERIOR COURT OF THE STATE OF CALIF'ORNIA
9 IN AND FOR THE COUNTY OF BUTTE
10 GREG HUMPHREY'S FARM ) Case No.: 20CV01041
& EQUIPMENT, INC., )
11 ) MEMORANDUM OF POINTS AND
Plaintiff, ) AUTHORITIES IN SUPPORT OF MOTION
T2 ) FOR RELIEF FROM JUDGMENT AND
v ) ORDER GRANTING SUMMARY JUDGMENT
13 )
MINERAL RESOURCES, LLC; ) Hearing Date: August 18,2021
T4 MRLLC INVESTORS, L.P.; ) Time: 9:00 A.M.
MRIGP, LLC; ) Dept.: 1
l5 CHRIS VAN VELDHUIZEN; ) Judge: Hon. Tamara L. Mosbarger
RODNEY W. BURTON; )
t6 CHARLES G. PETTIGREV/; ) Action Filed: May 19,2020
and DOES I through 20, ) Trial Date: August 30,202I
l7 )
Defendants. )
18 )
T9 I.INTRODUCTION.
20 This motion comes after entry of Judgment against Plaintiff GREG HUMPHERY'S FARM &
2I EQUIPMENT, INC., on June 10,2021,in favor of Defendants MRLLC INVESTORS, L.P., MRIGP,
22 LLC, CHRIS VAN VELDHUIZEN, and CHARLES G. PETTIGREW. This Judgment was entered after
23 Motions for Summary Judgment filed by Defendants were granted by Order After Hearing entered
24 herein on May 26,2021.
25 II. FACTUAL AND PROCEDURAL HISTORY.
26 On December 30, 2020, Defendants MRLLC INVESTORS, L.P., MRIGP, LLC, CHRIS VAN
27 VELDHUIZEN, and CHARLES G. PETTIGREV/ filed Motions for Summary Judgment as to all causes
28 of action alleged against each of them with an initial hearing date set for March 17,2021. [Declaration of
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs
1 Jameson Sheehan ("JS Decl.'),n21
2 On March 3,2021, Plaintiff filed an Opposition to each Motion for Summary Judgment requesting
J a continuance pursuant to Cal. Civ. Proc. Code $437c(h) to complete necessary discovery, including
4 discovery for which responses were due around the opposition filing deadline and party depositions. [JS
5 Decl., fl31
6 At the hearing on March I7,202I, the request for continuance was granted and a continuance was
7 made to May 26,2021. [JS Decl., fl4]
8 Prior to the hearing, Defendants served their written discovery responses. At the end of March and
9 beginning of April 2021, the Parties began communications to schedule the party depositions for
10 Defendants. Due to the mistake of Plaintiff s counsel Jameson Sheehan, Plaintiff failed to schedule the
11 depositions as the need to schedule the depositions and the e-mail communications from Defendants'
t2 counsel were misplaced and forgotten as other issues and matters arose in other cases, including a jury
13 trial in April and arbitration in May in which David Griffith is lead counsel supported by Jameson
t4 Sheehan. Jameson Sheehan additionally was handling matters for his family practice of approxim ately 20-
15 30 clients in total atthattime. [JS Decl., fl5]
l6 COVID related restrictions began being lifted or relaxed in and about April2}2l, which led to an
t7 increase in business, depositions, hearings, and other matters at the relevant time. IJS Decl., fl6]
18 After the hearing on March 17,202I, Plaintiff s counsel provided the new hearing date to their
t9 paralegal staff and asked them to calendar the hearing and also draft and filing deadlines for our renewed
20 opposition. Due to a clerical mistake, the hearing, draft reminder, and filing reminder for the opposition
21 to the motion for the l;4ay 26, 2021 hearing were not calendared on Plaintiff s counsel's reminders
22 calendar and appearance calendar. [JS Decl.,']f7]
z3 On May 20, 2021, Defendants jointly filed a Notice of Non-Opposition to the Motions for
24 Summary Judgment. This Notice was when Plaintiff first discovered the calendaring mistake since March
25 lTth and deposition scheduling mistake since early April202l. [JS Decl., fl8]
26 Due to the clerical error, Plaintiff was unable to request a further continuance pursuant to Cal. Civ.
27 Proc. Code a37c(h)as the request must be made in a timely opposition. Grounds for a further continuance
28 existed for the completion of the depositions of the individual defendants and the persons most
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 1
1 knowledgeable for the entity defendants. [JS Decl., fl9]
2 Plaintiff hled a rushed, late Oppositions to the Motions for Summary Judgment on May 24,2021,
J requesting the continuance pursuant to Cal. Civ. Proc. Code a37c(h). Due to the clerical error resulting in
4 a rushed opposition, Plaintiff inadvertently failed to include financial records produced in discovery
5 connecting the Defendants moving for a Motion for Summary Judgment to Defendant MINERAL
6 RESOURCES, LLC. Specifically, the financial records for 2018 reflect that during the period when
7 MINERAL RESOURCES owed its debt to Plaintiff, it paid out owner draws to MRLLC INVESTORS,
8 LP, in the sum of 53,844,180.11. [JS Decl., fll0, Exhibit "l"]
9 The Order After Hearing granting the Motions for Summary Judgment were entered herein on
10 i|/.ay 26,2021, and the Judgment was entered herein on June I0,2021. Notice of Entry of Judgment has
l1 not been made by the Court or Defendants. [JS Decl., 1T11]
I2 Now that the other defendants have had judgment in their favor, Defendant MINERAL
13 RESOURCES, LLC., now moves for leave to amend its answer and admit Plaintiff s allegations against
T4 it, which is a position contrary to that which has been taken in pleadings, discovery, and motions since it
15 filed an answer herein on June 9, 2020. [JS Decl., flI2, Exhibit "2"; Request for Judicial Notice Nos. 1
t6 arñ21
I7 III. REI,EVANT I,A AND ARGUMENT.
18 A. Grounds for Relief Include Mistake and Excusable Neslect.
I9 The discretionary relief provision of section 473(b) states that the "court may, upon any terms as
20 may be just, relieve aparty.. . from a judgment, dismissal, order, or other proceeding taken against him
2I or her through his or her mistake, inadvertence, su{prise, or excusable neglect." Unlike the mandatory
22 provision of section 473(b),the discretionary provision applies not only to defaults and default judgments,
23 but also to any "'judgment, dismissal, order, or other proceeding"' fZamora v. Clayborn Contracting
24 Group, Inc. (2002)28 Cal. rh 249,254 (Zamora)1, including "the failure of counsel to meet aprocedural
25 deadline." lLee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1193; accord, Huh v. Wang (200V) I
26 58 Cal. App. 4th 7406,1418-I4l9l
27 On application, a court, on any terms that may be just, may relieve apart or his or her legal
28 representative from ajudgment, dismissal, order, or other proceeding taken against the party through his
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 3
1 or her mistake, inadvertence, surprise, or excusable neglect. [Cal. Civ. Proc. Code $473(b)]
2 The purpose of Cal. Civ. Proc. Code $473(b), is to enable courts to relieve a party from the
J consequences of enforcing the strict and technical rules of procedure, by applying equitable rules in any
4 individual case so as to do justice between the litigants. lMelde v. Reynolds (1900) 129 CaL 308, 3121
5 Thus, it has been said that in empowering courts to grant relief upon any terms as may be just, Cal. Civ.
6 Proc. Code $473(b) authorizes the courts to exercise their equitable powers in considering applications
7 for relief under that statute.lsee Aldrich v. San Fernando Valley Lumber Co. (1985) 170 CaL App. 3d
8 725,7361
9 i. Mistake.
10 A mistake of fact occurs when a person understands the facts to be other than they are. A mistake
11 of law occurs when a person knows the facts as they really are but has a mistaken belief as to the legal
t2 consequence of those facts. fHodge Sheet Metal Products v. Palm Springs Riveria Hotel (1961) 189 Cal.
13 4pp.2d653,656;Barattiv.Baratti(1952) 109Cal. App.2d9lT,g2llGenerally,reliefmaybehadfrom
I4 a judgment, dismissal, order, or other proceeding from reasonable mistakes of fact. [see Cal. Civ. Proc.
15 Code $a73@)l
l6 ii. Excusable Neslect.
t7 Relief may be had from a judgment, dismissal, order, or other proceeding resulting from
18 "excusable neglect." [Cal. Civ. Proc. Code $473(b)] The statute itself expressly requires that the person
t9 who seeks relief on the ground show that the neglect \ilas "excusable". fTransit Ads, Inc., v. Tanner Motor
20 Livery, Ltd. (1969)270 Cal. App.2d275,2791
2l a. Clerical Error i a Basis for Relief.
22 The courts may show a willingness to excuse an attorney's neglect caused by clerical errors of the
z) attorney's office staff . lComunidad en Accion v. Los Angeles City Council (2013) 2I9 CaL App. 4th 11 16,
24 1131-1135 (calendaring error considered excusable neglect)]. However, the existence of other factors
25 may result in the denial of relief. Thus, in Davis v. Kay (1973) 34 Cal. App. 3d 680,682-684, the appellate
26 court reversed an order granting a motion to vacate a summary judgment for plaintiff based on the neglect
27 of defendants' attorney's secretary to calendar the date of the hearing on the summary judgment motion,
28 because:
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 4
I 'A default judgment in the same action had been set aside for excusable neglect attributable to the
2 same secretary's mistake in recording the date for the answer to be filed;
J .The secretary's declaration supporting the motion to vacate the summary judgment implicitly
4 admitted that the attorney handling the case had examined the summary judgment motion and its contents
5 when it was received, knew or could have known without effort thatitwas to be heard in just 10 days, and
6 that the points and authorities and exhaustive declarations with extensive exhibits attached to the motion
7 would require substantial time for preparation of answers; and
8 'Defendants' attorneys were notified of the court's adverse ruling on the summary judgment
9 motion two days after it was made and took no action to vacate it for another 23 days.
10 lDavis v. Kay (1973) 34 Cal. App. 3d 680,682-684, 110 Cal. Rptr. 198 (noting that the "tactics of
11 counsel for respondents was to proceed with all deliberate delay" and that the court would "not tolerate
t2 such tactics")]
l3 Here, Plaintiff seeks relief from the Judgment entered herein on June 10,2021, and the Order After
l4 Hearing entered herein on May 26,202I, on the basis that but for Plaintiff s counsel andlor their staff not
15 correctly calendaring the May 26,202I, hearing and the respective opposition deadline, Plaintiff would
T6 have timely filed an opposition with a request for continuance to obtain the depositions. Plaintiff would
t7 also have had additional time to prepare the opposition to request a continuance on the equitable grounds
18 for a continuance based on the court's discretionary powers to do so upon a showing of facts to justifu
t9 opposition may exist, namely the financial documents served by Defendant MINERAL RESOURCES,
20 LLC., herein in discovery that show transfers of funds to the other Defendants as alleged by Plaintiff in
2t the Complaint. Specifically, the financial records for 2018 reflect that during the period when MINERAL
22 RESOURCES owed its debt to Plaintiff, it paid out owner draws to MRLLC INVESTORS, LP, in the
23 sum of $3,844,780.11. Defendant had the funds available at the time to pay its debts, including those owed
24 to Plaintiff, but rather elected to make distributions to its owners resulting in MINERAL RESOURCES,
25 LLC., being insolvent and unable to pay its debts.
26 Of note, now that the other defendants have had judgment in their favor, Defendant MINERAL
27 RESOURCES, LLC., now moves for leave to amend its answer and admit Plaintiff s allegations against
28 it, which is a position contrary to that which has been taken in pleadings, discovery, and motions since it
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 5
1 filed an answer herein on June 9,2020.In its verified responses to Form Interrogatory, No. 15.1, Set One,
2 Defendant MINERAL RESOURCES, LLC., stated that:
J There is no written agreement between the plaintiff and responding party and no invoices
for services were ever sent to or received by the responding party. The subject equipment
4 was ordered by Tim Meagher, who was working on site as a contractor on a time and
material basis. Agents for Mineral never communicated with plaintiff so as to agree upon
5 the terms of any contract. Moreover, the amount claimed to be due by plaintiff eiceeds the
fair-market rental value for the subject equipment, which will be amãtter fully address in
6 expert discovery.
7 The circumstances here are distinguished from the facts in the Davis v. Kay case in that Plaintiff
I has not previously obtained relief due to clerical error herein, both Plaintiff s counsel and their staff did
9 not realize or know that an opposition had not been timely filed until receipt of the Notice of Non-
10 Opposition, Plaintiff moves timely for relief under Cal. Civ. Proc. Code $a73@).
11 Therefore, Plaintiff should be granted relief from the Judgment entered on June 10,2021, and the
I2 Order After Hearing entered on May 26,202I.
T3 b. Press of Business May be a Basis for Relief Coupled with Other Grounds.
t4 Generally, the attorney's neglect caused merely by the press of other business or similar
15 procrastination will not support the client's motion for relief based on excusable neglect under Cal. Civ.
T6 Proc. Code $473(b), absent some further showing of excuse. fBellmv. Bellia (1984) 150 Cal. App.3d
t7 1036, 1038, 198 Cal. Rptr. 389; Martinv. Taylor (1968) 267 Cal. App.2dll2,117l Conversely, press of
18 business coupled with unusual circumstances may justifu relief. lsee Robinson v. Varela (1977) 67 CaL
T9 App. 3d 6ll, 614-615,616 (where press of business coupled with other circumstances justified relief).
20 Here, Plaintiff had the press of business of a jury trial in April202l and an arbitration in May
2l 2021, among the remainder of their cases, that coupled with the clerical error discussed above, led to the
22 failure of Plaintiff to timely file an opposition andlor complete depositions and necessary discovery prior
23 to the hearing on May 26,2021. Further, COVID related restrictions began being lifted or relaxed in and
24 about April202l, which led to an increase in business, depositions, hearings, and other matters at the
25 relevant time.
26 Plaintiff therefore requests relief from the Judgment entered on June I0,202I, and the Order After
27 Hearing entered on May 26,2021.
28
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 6
1 B. Timeliness of a Motion to Cal. Civ. Proc. Code S473lbl.
2 An application for relief under Cal. Civ. Proc. Code $473(b), must be made within a reasonable
J time, in no case exceeding six months, after the judgment, dismissal, order, orproceeding was taken. [Cal.
4 Civ. Proc. Code $473(b)l As used in Cal. Civ. Proc. Code $473(b), "six months" is the equivalent of half
5 ayear, that, under Cal. Gov. Code $6803 (defining "half year"), is the equivalent of I82 days.lDavis v.
6 Thayer (1980) 113 Cal. App. 3d 892,9031Therefore, Plaintiffls motion is filed timely as being within
7 182 days of June 10,2021, and May 26,2021, or no laterthanNovember24,202l.
I i. Reasonableness of Timins of and Service of Notice of Motion.
9 Further, the statutory six-month limitation in Cal. Civ. Proc. Code $473(b), is a limitation on the
10 power of the court to grant any relief under the statute. However, Cal. Civ. Proc. Code $473(b), also
11 requires that the application for relief be made within a reasonable time within that six-month period.
t2 fBenjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523,5281 Because the motion for relief must be made
13 within a reasonable time within the six-month period, diligence is an essential ingredient of a motion for
t4 relief. lYo une s s i
v. I4roof (20 | 6) 244 Cal. App. 4th I 137, I I 44-l I 451
15 Thus, aparly seeking relief under Cal. Civ. Proc. Code $473(b), ordinarily has the double burden
t6 of showing [Billings v. Health Plan of America (1990) 225 Cal. App. 3d 250, 255 (mistake or
T7 inadvertence);Kendallv. Barker (1988) 197 CaL App.3d 619,625 (neglect)l:
18 .Diligence in making the motion after discovering its own mistake, and
I9 .A satisfactory excuse for the occuffence of that mistake.
20 The court must generally consider the facts and circumstances of the case to determine whether
2l the party was diligent in seeking relief, and whether the reasons given for the party's mistake are
22 satisfactory . lBillings v. Health Plan of America (1990) 225 Cal. App. 3d 250,2551As a result, even if a
23 proper ground for relief might be made out, a motion for relief may still be denied if the moving party
24 failed to exercise diligence in seeking relief. fsee Benjamin v. Dalmo Mfg. Co. (194S) 31 Cal. 2d 523, 528;
25 Gore v. Writt (1957) 149 Cal. App.2d 681, 6851
26 An unexplained delay within the six-month period may result in denial of relief. lsee Benjamin v.
27 Dalmo Mfg. Co. (1948) 3l Cal. 2d 523, 528-533 (reversing order setting aside default and default
28 judgment because of unexplained 104-day delay in seeking relief, even though motion for relief was
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 7
1 served and filed approximately three and one-half months after the default and default judgment were
2 entered and no counter affidavit was filed in opposition to the motion); Billings v. Health Plan of America
J (1990) 225 Cal. App. 3d 250,254-255 (in reversing order setting aside dismissal of complaint for failure
4 to file amended pleading, court pointed out that plaintiff failed to explain five-month delay in filing the
5 motion for relief; involving motion for relief based on attorney's affidavit of fault); A & B Metql Products
6 v. MacArthur Properties, Inc. (1970) 11 Cal. App. 3d 642,649 (affirming order denying relief from default
7 and default judgment on ground that motion for relief was not made within reasonable time when default
8 was entered December 26,1967,judgment was filed January 9,1968, notice of motion for relief was filed
9 May 7,1968, and no explanation for delay was given); see also Ludka v. Memory Mognetics International
10 (1972) 25 Cal. App. 3d 316,321-322 (tl'nee-month unexplained delay in making motion as precluding
11 relief on two of three causes of action; judgment on third cause of action reversed for violation of Code
l2 Civ. Proc. $ 580 limitation of relief on default to amount demanded in complaint)1. A delay is
13 unreasonable as a matter of law only when it exceeds three months and there is no evidence to
t4 explain the delay. lMinickv. City of Petalumo (2016) 3 Cal. App. 5th 15,3314 (five-week delay deemed
15 reasonable)]
t6 Here, Plaintiff is filing its Notice of Motion on August 2,2021, which is 68 days (2 months, 7
t7 days) after entry of the Order Granting the Motion for Summary Judgment. Therefore, any delay in filing
18 this motion is not unreasonable as a matter of law.
t9 Plaintiff has delayed in filing this motion as there was a settlement conference set for June25,
20 202I. Plaintiff desired to give an informal resolution a chance prior to incurring the cost and time for
2I preparation of this motion. After settlement was not reached, Plaintiff began preparation of this motion
22 and brings it now before the Court for ruling.
23 IV. CONCLUSION
24 Based upon the foregoing, Plaintiff seeks relief from the Judgment entered on June I0,2021, and
25 the Order After Hearing entered on May 26,2021, on the basis of excusable neglect of counsel due to the
26 combined grounds of press of business and clerical error. Plaintiff requests thata continued hearing on
27 Defendants' Motions for Summary Judgment be set out sixty days from the ruling on this motion.
28
Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs I
I Respectfully Submitted
2 GRIFFITH HORN & SHEEHAN, LLP.
J DATED: August L ,2021. By
DAVID R.
4 Attomey for Plaintiff,
GREG HUMPHERYS FARM &
5 EQUIPMENT,INC.
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Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 9
I PROOF OF SERVICE
2 I, the below signed, declare:
J I am empfoyed in the County of Butte, State of California, I am over 18 years of age and am not
aparty to the within action; my business address is 1530 Humboldt Road, Suite 3, Chico, California
4 95928. On this date, I served the foregoing document described as:
5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
RELIEF FROM JUDGMENT AND ORDER GRANTING MOTIONS FOR SUMMARY
6 JUDGMENT
7 Said document was served on the inferested party or parties in this action by placing a true copy
of the original document, enclosed in a sealed envelope, and addressed as noted below.
8
Thomas M. Swett, Esq.
9 James D. Wiggine, Esq.
Burton & Swett, P.C.
10 47 i|l4ain Street
Sutter Creek, CA 95685
l1 Telephone: (209) 267 -8301
E-mail : tom@burtonswett.com
I2 jim@burtonswett.com
lCounsel for Defendantsl
t3
I am familiar with 9ur firm's practice of collection and processing correspondence for mailing.
I4 Under thatpractice it would be deposited with the U.S. Postal Service on that same day with postage
thereon fully prepaid at Chico, California in the ordinary course of business. I am awaie that õn mõtion
15 of the party served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one working day after the date of deposit for mailing in this declaration.
t6
tr (By Electronic Mail) Such document was delivered by electronic mail to the person(s) at the
t7 address(es) set forth above, pursuant to Cal. Civ. Proc. Code $1010.6(e).
18 I declare under penalty of perjury under the laws of the State of Califomia that the above is true
and correct. I further declare that I made the service set forth herein on the date set forth below.
t9
Executed on August L 202l,at Chico, California.
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2l By:
Steven Chamberlin
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Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 10
Preview
1 DAVrD R. GzuFFTTH, ESQ. (SBN 170t72) GRIFFITH HORN & SHEEHAN, LLP 2 1530 Humboldt Road, Suite 3 Chico, California 95928 a J Telephone: (530) 812-1 000 8/2/2021 Facsimile: (530) 809-1 093 4 Email : david@davidgriffithlaw.com 5 Attorney for Plaintiff, GREG HUMPHERYS FARM & EQUIPMENT, INC. 6 7 8 THE SUPERIOR COURT OF THE STATE OF CALIF'ORNIA 9 IN AND FOR THE COUNTY OF BUTTE 10 GREG HUMPHREY'S FARM ) Case No.: 20CV01041 & EQUIPMENT, INC., ) 11 ) MEMORANDUM OF POINTS AND Plaintiff, ) AUTHORITIES IN SUPPORT OF MOTION T2 ) FOR RELIEF FROM JUDGMENT AND v ) ORDER GRANTING SUMMARY JUDGMENT 13 ) MINERAL RESOURCES, LLC; ) Hearing Date: August 18,2021 T4 MRLLC INVESTORS, L.P.; ) Time: 9:00 A.M. MRIGP, LLC; ) Dept.: 1 l5 CHRIS VAN VELDHUIZEN; ) Judge: Hon. Tamara L. Mosbarger RODNEY W. BURTON; ) t6 CHARLES G. PETTIGREV/; ) Action Filed: May 19,2020 and DOES I through 20, ) Trial Date: August 30,202I l7 ) Defendants. ) 18 ) T9 I.INTRODUCTION. 20 This motion comes after entry of Judgment against Plaintiff GREG HUMPHERY'S FARM & 2I EQUIPMENT, INC., on June 10,2021,in favor of Defendants MRLLC INVESTORS, L.P., MRIGP, 22 LLC, CHRIS VAN VELDHUIZEN, and CHARLES G. PETTIGREW. This Judgment was entered after 23 Motions for Summary Judgment filed by Defendants were granted by Order After Hearing entered 24 herein on May 26,2021. 25 II. FACTUAL AND PROCEDURAL HISTORY. 26 On December 30, 2020, Defendants MRLLC INVESTORS, L.P., MRIGP, LLC, CHRIS VAN 27 VELDHUIZEN, and CHARLES G. PETTIGREV/ filed Motions for Summary Judgment as to all causes 28 of action alleged against each of them with an initial hearing date set for March 17,2021. [Declaration of Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 1 Jameson Sheehan ("JS Decl.'),n21 2 On March 3,2021, Plaintiff filed an Opposition to each Motion for Summary Judgment requesting J a continuance pursuant to Cal. Civ. Proc. Code $437c(h) to complete necessary discovery, including 4 discovery for which responses were due around the opposition filing deadline and party depositions. [JS 5 Decl., fl31 6 At the hearing on March I7,202I, the request for continuance was granted and a continuance was 7 made to May 26,2021. [JS Decl., fl4] 8 Prior to the hearing, Defendants served their written discovery responses. At the end of March and 9 beginning of April 2021, the Parties began communications to schedule the party depositions for 10 Defendants. Due to the mistake of Plaintiff s counsel Jameson Sheehan, Plaintiff failed to schedule the 11 depositions as the need to schedule the depositions and the e-mail communications from Defendants' t2 counsel were misplaced and forgotten as other issues and matters arose in other cases, including a jury 13 trial in April and arbitration in May in which David Griffith is lead counsel supported by Jameson t4 Sheehan. Jameson Sheehan additionally was handling matters for his family practice of approxim ately 20- 15 30 clients in total atthattime. [JS Decl., fl5] l6 COVID related restrictions began being lifted or relaxed in and about April2}2l, which led to an t7 increase in business, depositions, hearings, and other matters at the relevant time. IJS Decl., fl6] 18 After the hearing on March 17,202I, Plaintiff s counsel provided the new hearing date to their t9 paralegal staff and asked them to calendar the hearing and also draft and filing deadlines for our renewed 20 opposition. Due to a clerical mistake, the hearing, draft reminder, and filing reminder for the opposition 21 to the motion for the l;4ay 26, 2021 hearing were not calendared on Plaintiff s counsel's reminders 22 calendar and appearance calendar. [JS Decl.,']f7] z3 On May 20, 2021, Defendants jointly filed a Notice of Non-Opposition to the Motions for 24 Summary Judgment. This Notice was when Plaintiff first discovered the calendaring mistake since March 25 lTth and deposition scheduling mistake since early April202l. [JS Decl., fl8] 26 Due to the clerical error, Plaintiff was unable to request a further continuance pursuant to Cal. Civ. 27 Proc. Code a37c(h)as the request must be made in a timely opposition. Grounds for a further continuance 28 existed for the completion of the depositions of the individual defendants and the persons most Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 1 1 knowledgeable for the entity defendants. [JS Decl., fl9] 2 Plaintiff hled a rushed, late Oppositions to the Motions for Summary Judgment on May 24,2021, J requesting the continuance pursuant to Cal. Civ. Proc. Code a37c(h). Due to the clerical error resulting in 4 a rushed opposition, Plaintiff inadvertently failed to include financial records produced in discovery 5 connecting the Defendants moving for a Motion for Summary Judgment to Defendant MINERAL 6 RESOURCES, LLC. Specifically, the financial records for 2018 reflect that during the period when 7 MINERAL RESOURCES owed its debt to Plaintiff, it paid out owner draws to MRLLC INVESTORS, 8 LP, in the sum of 53,844,180.11. [JS Decl., fll0, Exhibit "l"] 9 The Order After Hearing granting the Motions for Summary Judgment were entered herein on 10 i|/.ay 26,2021, and the Judgment was entered herein on June I0,2021. Notice of Entry of Judgment has l1 not been made by the Court or Defendants. [JS Decl., 1T11] I2 Now that the other defendants have had judgment in their favor, Defendant MINERAL 13 RESOURCES, LLC., now moves for leave to amend its answer and admit Plaintiff s allegations against T4 it, which is a position contrary to that which has been taken in pleadings, discovery, and motions since it 15 filed an answer herein on June 9, 2020. [JS Decl., flI2, Exhibit "2"; Request for Judicial Notice Nos. 1 t6 arñ21 I7 III. REI,EVANT I,A AND ARGUMENT. 18 A. Grounds for Relief Include Mistake and Excusable Neslect. I9 The discretionary relief provision of section 473(b) states that the "court may, upon any terms as 20 may be just, relieve aparty.. . from a judgment, dismissal, order, or other proceeding taken against him 2I or her through his or her mistake, inadvertence, su{prise, or excusable neglect." Unlike the mandatory 22 provision of section 473(b),the discretionary provision applies not only to defaults and default judgments, 23 but also to any "'judgment, dismissal, order, or other proceeding"' fZamora v. Clayborn Contracting 24 Group, Inc. (2002)28 Cal. rh 249,254 (Zamora)1, including "the failure of counsel to meet aprocedural 25 deadline." lLee v. Wells Fargo Bank (2001) 88 Cal. App. 4th 1187, 1193; accord, Huh v. Wang (200V) I 26 58 Cal. App. 4th 7406,1418-I4l9l 27 On application, a court, on any terms that may be just, may relieve apart or his or her legal 28 representative from ajudgment, dismissal, order, or other proceeding taken against the party through his Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 3 1 or her mistake, inadvertence, surprise, or excusable neglect. [Cal. Civ. Proc. Code $473(b)] 2 The purpose of Cal. Civ. Proc. Code $473(b), is to enable courts to relieve a party from the J consequences of enforcing the strict and technical rules of procedure, by applying equitable rules in any 4 individual case so as to do justice between the litigants. lMelde v. Reynolds (1900) 129 CaL 308, 3121 5 Thus, it has been said that in empowering courts to grant relief upon any terms as may be just, Cal. Civ. 6 Proc. Code $473(b) authorizes the courts to exercise their equitable powers in considering applications 7 for relief under that statute.lsee Aldrich v. San Fernando Valley Lumber Co. (1985) 170 CaL App. 3d 8 725,7361 9 i. Mistake. 10 A mistake of fact occurs when a person understands the facts to be other than they are. A mistake 11 of law occurs when a person knows the facts as they really are but has a mistaken belief as to the legal t2 consequence of those facts. fHodge Sheet Metal Products v. Palm Springs Riveria Hotel (1961) 189 Cal. 13 4pp.2d653,656;Barattiv.Baratti(1952) 109Cal. App.2d9lT,g2llGenerally,reliefmaybehadfrom I4 a judgment, dismissal, order, or other proceeding from reasonable mistakes of fact. [see Cal. Civ. Proc. 15 Code $a73@)l l6 ii. Excusable Neslect. t7 Relief may be had from a judgment, dismissal, order, or other proceeding resulting from 18 "excusable neglect." [Cal. Civ. Proc. Code $473(b)] The statute itself expressly requires that the person t9 who seeks relief on the ground show that the neglect \ilas "excusable". fTransit Ads, Inc., v. Tanner Motor 20 Livery, Ltd. (1969)270 Cal. App.2d275,2791 2l a. Clerical Error i a Basis for Relief. 22 The courts may show a willingness to excuse an attorney's neglect caused by clerical errors of the z) attorney's office staff . lComunidad en Accion v. Los Angeles City Council (2013) 2I9 CaL App. 4th 11 16, 24 1131-1135 (calendaring error considered excusable neglect)]. However, the existence of other factors 25 may result in the denial of relief. Thus, in Davis v. Kay (1973) 34 Cal. App. 3d 680,682-684, the appellate 26 court reversed an order granting a motion to vacate a summary judgment for plaintiff based on the neglect 27 of defendants' attorney's secretary to calendar the date of the hearing on the summary judgment motion, 28 because: Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 4 I 'A default judgment in the same action had been set aside for excusable neglect attributable to the 2 same secretary's mistake in recording the date for the answer to be filed; J .The secretary's declaration supporting the motion to vacate the summary judgment implicitly 4 admitted that the attorney handling the case had examined the summary judgment motion and its contents 5 when it was received, knew or could have known without effort thatitwas to be heard in just 10 days, and 6 that the points and authorities and exhaustive declarations with extensive exhibits attached to the motion 7 would require substantial time for preparation of answers; and 8 'Defendants' attorneys were notified of the court's adverse ruling on the summary judgment 9 motion two days after it was made and took no action to vacate it for another 23 days. 10 lDavis v. Kay (1973) 34 Cal. App. 3d 680,682-684, 110 Cal. Rptr. 198 (noting that the "tactics of 11 counsel for respondents was to proceed with all deliberate delay" and that the court would "not tolerate t2 such tactics")] l3 Here, Plaintiff seeks relief from the Judgment entered herein on June 10,2021, and the Order After l4 Hearing entered herein on May 26,202I, on the basis that but for Plaintiff s counsel andlor their staff not 15 correctly calendaring the May 26,202I, hearing and the respective opposition deadline, Plaintiff would T6 have timely filed an opposition with a request for continuance to obtain the depositions. Plaintiff would t7 also have had additional time to prepare the opposition to request a continuance on the equitable grounds 18 for a continuance based on the court's discretionary powers to do so upon a showing of facts to justifu t9 opposition may exist, namely the financial documents served by Defendant MINERAL RESOURCES, 20 LLC., herein in discovery that show transfers of funds to the other Defendants as alleged by Plaintiff in 2t the Complaint. Specifically, the financial records for 2018 reflect that during the period when MINERAL 22 RESOURCES owed its debt to Plaintiff, it paid out owner draws to MRLLC INVESTORS, LP, in the 23 sum of $3,844,780.11. Defendant had the funds available at the time to pay its debts, including those owed 24 to Plaintiff, but rather elected to make distributions to its owners resulting in MINERAL RESOURCES, 25 LLC., being insolvent and unable to pay its debts. 26 Of note, now that the other defendants have had judgment in their favor, Defendant MINERAL 27 RESOURCES, LLC., now moves for leave to amend its answer and admit Plaintiff s allegations against 28 it, which is a position contrary to that which has been taken in pleadings, discovery, and motions since it Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 5 1 filed an answer herein on June 9,2020.In its verified responses to Form Interrogatory, No. 15.1, Set One, 2 Defendant MINERAL RESOURCES, LLC., stated that: J There is no written agreement between the plaintiff and responding party and no invoices for services were ever sent to or received by the responding party. The subject equipment 4 was ordered by Tim Meagher, who was working on site as a contractor on a time and material basis. Agents for Mineral never communicated with plaintiff so as to agree upon 5 the terms of any contract. Moreover, the amount claimed to be due by plaintiff eiceeds the fair-market rental value for the subject equipment, which will be amãtter fully address in 6 expert discovery. 7 The circumstances here are distinguished from the facts in the Davis v. Kay case in that Plaintiff I has not previously obtained relief due to clerical error herein, both Plaintiff s counsel and their staff did 9 not realize or know that an opposition had not been timely filed until receipt of the Notice of Non- 10 Opposition, Plaintiff moves timely for relief under Cal. Civ. Proc. Code $a73@). 11 Therefore, Plaintiff should be granted relief from the Judgment entered on June 10,2021, and the I2 Order After Hearing entered on May 26,202I. T3 b. Press of Business May be a Basis for Relief Coupled with Other Grounds. t4 Generally, the attorney's neglect caused merely by the press of other business or similar 15 procrastination will not support the client's motion for relief based on excusable neglect under Cal. Civ. T6 Proc. Code $473(b), absent some further showing of excuse. fBellmv. Bellia (1984) 150 Cal. App.3d t7 1036, 1038, 198 Cal. Rptr. 389; Martinv. Taylor (1968) 267 Cal. App.2dll2,117l Conversely, press of 18 business coupled with unusual circumstances may justifu relief. lsee Robinson v. Varela (1977) 67 CaL T9 App. 3d 6ll, 614-615,616 (where press of business coupled with other circumstances justified relief). 20 Here, Plaintiff had the press of business of a jury trial in April202l and an arbitration in May 2l 2021, among the remainder of their cases, that coupled with the clerical error discussed above, led to the 22 failure of Plaintiff to timely file an opposition andlor complete depositions and necessary discovery prior 23 to the hearing on May 26,2021. Further, COVID related restrictions began being lifted or relaxed in and 24 about April202l, which led to an increase in business, depositions, hearings, and other matters at the 25 relevant time. 26 Plaintiff therefore requests relief from the Judgment entered on June I0,202I, and the Order After 27 Hearing entered on May 26,2021. 28 Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 6 1 B. Timeliness of a Motion to Cal. Civ. Proc. Code S473lbl. 2 An application for relief under Cal. Civ. Proc. Code $473(b), must be made within a reasonable J time, in no case exceeding six months, after the judgment, dismissal, order, orproceeding was taken. [Cal. 4 Civ. Proc. Code $473(b)l As used in Cal. Civ. Proc. Code $473(b), "six months" is the equivalent of half 5 ayear, that, under Cal. Gov. Code $6803 (defining "half year"), is the equivalent of I82 days.lDavis v. 6 Thayer (1980) 113 Cal. App. 3d 892,9031Therefore, Plaintiffls motion is filed timely as being within 7 182 days of June 10,2021, and May 26,2021, or no laterthanNovember24,202l. I i. Reasonableness of Timins of and Service of Notice of Motion. 9 Further, the statutory six-month limitation in Cal. Civ. Proc. Code $473(b), is a limitation on the 10 power of the court to grant any relief under the statute. However, Cal. Civ. Proc. Code $473(b), also 11 requires that the application for relief be made within a reasonable time within that six-month period. t2 fBenjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523,5281 Because the motion for relief must be made 13 within a reasonable time within the six-month period, diligence is an essential ingredient of a motion for t4 relief. lYo une s s i v. I4roof (20 | 6) 244 Cal. App. 4th I 137, I I 44-l I 451 15 Thus, aparly seeking relief under Cal. Civ. Proc. Code $473(b), ordinarily has the double burden t6 of showing [Billings v. Health Plan of America (1990) 225 Cal. App. 3d 250, 255 (mistake or T7 inadvertence);Kendallv. Barker (1988) 197 CaL App.3d 619,625 (neglect)l: 18 .Diligence in making the motion after discovering its own mistake, and I9 .A satisfactory excuse for the occuffence of that mistake. 20 The court must generally consider the facts and circumstances of the case to determine whether 2l the party was diligent in seeking relief, and whether the reasons given for the party's mistake are 22 satisfactory . lBillings v. Health Plan of America (1990) 225 Cal. App. 3d 250,2551As a result, even if a 23 proper ground for relief might be made out, a motion for relief may still be denied if the moving party 24 failed to exercise diligence in seeking relief. fsee Benjamin v. Dalmo Mfg. Co. (194S) 31 Cal. 2d 523, 528; 25 Gore v. Writt (1957) 149 Cal. App.2d 681, 6851 26 An unexplained delay within the six-month period may result in denial of relief. lsee Benjamin v. 27 Dalmo Mfg. Co. (1948) 3l Cal. 2d 523, 528-533 (reversing order setting aside default and default 28 judgment because of unexplained 104-day delay in seeking relief, even though motion for relief was Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 7 1 served and filed approximately three and one-half months after the default and default judgment were 2 entered and no counter affidavit was filed in opposition to the motion); Billings v. Health Plan of America J (1990) 225 Cal. App. 3d 250,254-255 (in reversing order setting aside dismissal of complaint for failure 4 to file amended pleading, court pointed out that plaintiff failed to explain five-month delay in filing the 5 motion for relief; involving motion for relief based on attorney's affidavit of fault); A & B Metql Products 6 v. MacArthur Properties, Inc. (1970) 11 Cal. App. 3d 642,649 (affirming order denying relief from default 7 and default judgment on ground that motion for relief was not made within reasonable time when default 8 was entered December 26,1967,judgment was filed January 9,1968, notice of motion for relief was filed 9 May 7,1968, and no explanation for delay was given); see also Ludka v. Memory Mognetics International 10 (1972) 25 Cal. App. 3d 316,321-322 (tl'nee-month unexplained delay in making motion as precluding 11 relief on two of three causes of action; judgment on third cause of action reversed for violation of Code l2 Civ. Proc. $ 580 limitation of relief on default to amount demanded in complaint)1. A delay is 13 unreasonable as a matter of law only when it exceeds three months and there is no evidence to t4 explain the delay. lMinickv. City of Petalumo (2016) 3 Cal. App. 5th 15,3314 (five-week delay deemed 15 reasonable)] t6 Here, Plaintiff is filing its Notice of Motion on August 2,2021, which is 68 days (2 months, 7 t7 days) after entry of the Order Granting the Motion for Summary Judgment. Therefore, any delay in filing 18 this motion is not unreasonable as a matter of law. t9 Plaintiff has delayed in filing this motion as there was a settlement conference set for June25, 20 202I. Plaintiff desired to give an informal resolution a chance prior to incurring the cost and time for 2I preparation of this motion. After settlement was not reached, Plaintiff began preparation of this motion 22 and brings it now before the Court for ruling. 23 IV. CONCLUSION 24 Based upon the foregoing, Plaintiff seeks relief from the Judgment entered on June I0,2021, and 25 the Order After Hearing entered on May 26,2021, on the basis of excusable neglect of counsel due to the 26 combined grounds of press of business and clerical error. Plaintiff requests thata continued hearing on 27 Defendants' Motions for Summary Judgment be set out sixty days from the ruling on this motion. 28 Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs I I Respectfully Submitted 2 GRIFFITH HORN & SHEEHAN, LLP. J DATED: August L ,2021. By DAVID R. 4 Attomey for Plaintiff, GREG HUMPHERYS FARM & 5 EQUIPMENT,INC. 6 7 8 9 10 11 t2 13 t4 15 T6 l7 18 t9 20 2t 22 23 24 25 26 27 28 Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 9 I PROOF OF SERVICE 2 I, the below signed, declare: J I am empfoyed in the County of Butte, State of California, I am over 18 years of age and am not aparty to the within action; my business address is 1530 Humboldt Road, Suite 3, Chico, California 4 95928. On this date, I served the foregoing document described as: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT AND ORDER GRANTING MOTIONS FOR SUMMARY 6 JUDGMENT 7 Said document was served on the inferested party or parties in this action by placing a true copy of the original document, enclosed in a sealed envelope, and addressed as noted below. 8 Thomas M. Swett, Esq. 9 James D. Wiggine, Esq. Burton & Swett, P.C. 10 47 i|l4ain Street Sutter Creek, CA 95685 l1 Telephone: (209) 267 -8301 E-mail : tom@burtonswett.com I2 jim@burtonswett.com lCounsel for Defendantsl t3 I am familiar with 9ur firm's practice of collection and processing correspondence for mailing. I4 Under thatpractice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Chico, California in the ordinary course of business. I am awaie that õn mõtion 15 of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one working day after the date of deposit for mailing in this declaration. t6 tr (By Electronic Mail) Such document was delivered by electronic mail to the person(s) at the t7 address(es) set forth above, pursuant to Cal. Civ. Proc. Code $1010.6(e). 18 I declare under penalty of perjury under the laws of the State of Califomia that the above is true and correct. I further declare that I made the service set forth herein on the date set forth below. t9 Executed on August L 202l,at Chico, California. 20 2l By: Steven Chamberlin 22 23 24 25 26 27 28 Memo. of Points and Authorities in Support of Motion for Relief from Judgment and Order on MSJs 10