APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. (Super. Ct. No. 07 C 0169).
The opinion of the court was delivered by: Gomes, J.
CERTIFIED FOR PUBLICATION
Plaintiff Susan Henderson's counsel went "all in" on a bad bet. First, he waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months. Next, he assigned the preparation of that opposition to a paralegal who he failed to supervise. Finally, learning that the paralegal had left the state with the opposition the last business day before it had to be filed without his having seen it, he hoped for a miracle instead of immediately going to court to request an extension of time. Because these are inexcusable mistakes, the trial court did not abuse its discretion in denying Henderson's request for discretionary relief under Code of Civil Procedure*fn1 section 473, subdivision (b) (hereafter section 473(b)), from entry of summary judgment in favor of Pacific Gas and Electric Co. (PG&E). We also agree, with the majority of courts who have decided the issue, that Henderson is not entitled to mandatory relief under section 473(b) because such relief is not available for summary judgments. Accordingly, we affirm the post-judgment order denying Henderson's motion to vacate the summary judgment.
The underlying facts are irrelevant to the issues on appeal. In March 2007, Henderson filed a complaint against her former employer, PG&E, asserting causes of action for employment discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and breach of contract. The case was initially set for trial on May 12, 2008, but the trial date was continued to August 25, 2008.
On May 8, 2008, PG&E moved for summary judgment, offering evidence to negate various elements of Henderson's claims and establish a complete defense to the action. A hearing on the motion was set for July 22, 2008. On June 10, 2008, the trial court ordered PG&E to produce discovery Henderson had requested within 30 days. On June 20, 2008, Henderson filed an ex parte application to continue the trial date and the hearing on the summary judgment motion so she could receive this discovery and conduct additional discovery based on the information provided. The court granted the application and continued the hearing on the summary judgment motion to September 22, 2008 and trial to the week of October 27, 2008. Pursuant to section 437c, subdivision (b), the opposition to the motion was due on September 8, 2008, 14 days before the September 22 hearing date.
On September 8, 2008, the only document Henderson filed was the declaration of her attorney, Rod McClelland, in which he stated that evidence would be presented at the hearing on the summary judgment motion to show a triable issue of material fact existed. One exhibit was attached to the declaration -- the declaration of a former PG&E employee which McClelland stated supported Henderson's gender discrimination claim. On September 9, Henderson filed two points and authorities, two responses to PG&E's separate statement, and the declaration of McClelland's law clerk, and on September 12, she filed McClelland's declaration authenticating various documents attached to it.
On September 15, 2008, Henderson filed an ex parte application for an order compelling the depositions of individuals she claimed were the subject of the court's June 10, 2008 discovery order and continuing the hearing on the summary judgment motion pursuant to section 437c, subdivision (h). In a declaration attached to the application, McClelland stated that PG&E refused to produce for deposition seven individuals who were subject to the trial court's June 10, 2008 ruling. He also stated that he had entrusted preparation of the summary judgment opposition to his paralegal, who had just taken the California Bar exam, because he was handling other matters related to his law practice. On Thursday, September 4, 2008, his paralegal, who was working on the opposition from home and had the majority of the case file with her, called him and told him the opposition documents would be in his office the following day. The next morning, however, he received a voicemail message from her while on his way to work, in which she stated she had made arrangements with an attorney service in Fresno to email the opposition directly to the service, who would file and serve it on Monday, September 8. On September 8, he contacted the attorney service, who denied having spoken with his paralegal, and had his secretary call the superior court's clerk, who could not confirm any filings until the following morning. In an effort to protect his client, he filed his declaration and a copy of the witness declaration. The following morning, he confirmed that only two other opposition documents had been filed. On September 9 and 10, his office received emailed copies of some of the documents his paralegal prepared. Finally, he stated that he was throwing himself on the court's mercy relating to the late filing and service of the summary judgment opposition.
The following day, PG&E filed a written opposition to Henderson's application. On September 17, the court continued the ex parte hearing to the following Monday, September 22, with the application to be heard prior to the summary judgment motion. Although the court also gave Henderson permission to file a reply to PG&E's opposition, Henderson did not file one. Also on September 17, Henderson filed and served an entirely new set of documents constituting her opposition to the summary judgment motion.
At the September 22, 2008 hearing, the trial court denied Henderson's request for continuance under section 437c, subdivision (h), finding there was an insufficient factual basis to support the continuance, as the depositions Henderson sought to take had not even been noticed and no factual declaration was made as to what information she expected to obtain from them, and the request was untimely and not diligently made. The court further found that, assuming McClelland's declaration was filed under section 473, it did not support a finding of excusable neglect, and Henderson was not entitled to mandatory relief under section 473(b) because that provision does not apply to summary judgment motions. Accordingly, the court denied the application to continue the summary judgment motion.
The court then granted PG&E's motion to strike the late-filed opposition and concluded PG&E was entitled to summary judgment based on the evidence it had submitted in support of its motion. A written order granting summary judgment in PG&E's favor was filed on October 30, 2008. The court entered judgment against Henderson on November 14, 2008, and notice of entry of judgment was served on McClelland by mail on November 18, 2008. On December 2, 2008, Henderson filed a motion for a new trial. By order filed January 29, 2009, the trial court denied the motion.
On March 20, 2009, Henderson filed a motion under 473(b) to vacate the summary judgment against her. In support of her motion, McClelland submitted a declaration in which he claimed (1) he did not begin preparing the opposition to the summary judgment motion immediately because he was involved in several other cases, including a mediation and preparation of an opposition to a summary judgment motion in another employment case, (2) when he began preparing the opposition in this case, he was served with a summary judgment motion in another case, with that opposition due one week before the opposition in this case, (3) when counsel in the other case refused to agree to continue the motion, he was "forced to focus" on that opposition and allowed his paralegal, who he had worked with for several years, was a certified law student, had prepared a summary judgment opposition before, and was familiar with Henderson's case, to prepare the opposition in this case, and (4) he gave his paralegal the task of preparing the opposition more than four weeks before the deadline to file it.
McClelland further explained that he had requested a continuance of the summary judgment motion in July 2008 because he had not yet received personnel records he had subpoenaed from PG&E on July 9 and 10, 2008. After the court granted his request and continued the hearing to September 22, 2008, on August 13, defense counsel requested that he not depose certain individuals whose personnel records were produced, as specific Bates-stamped documents showed that their information was irrelevant to Henderson's claims. However, he had not received the documents and therefore requested defense counsel provide them. By August 20, his office had received documents responsive to the July 9 and 10 subpoenas, and documents identified in the August 13 letter. He believed additional documents existed that had not been produced and the seven individuals PG&E refused to produce for deposition, whose depositions were never taken, had information relevant to Henderson's claim of pretext, as they were male employees who were not terminated despite having committed severe misconduct.
McClelland stated that throughout the month before the opposition was due, his paralegal, who was leaving for an Alaskan cruise on Friday, September 5, 2008, assured him the preparation was going well and would be filed timely. On Thursday, September 4, she left his office early to work on completing the opposition at home, taking the majority of Henderson's file with her without his consent. Later that day, she called him and said the opposition would be in his office on Friday morning, September 5, for his review and filing the following Monday. On his way to work on September 5, he received a voicemail message the paralegal left on his cell phone at 7 a.m., stating that her computer crashed the night before, so she took the entire file with her on the cruise and made arrangements to have the documents emailed to an employee of an attorney service in Fresno, who would then file and serve the documents on September 8. On September 8, McClelland contacted the attorney service employee, who said he had never spoken with the paralegal. McClelland's secretary called the superior court clerk, who could not confirm the filing of any documents until the next morning. McClelland could not contact the paralegal because she was without cell phone access. In order to protect Henderson, McClelland filed his declaration, with a copy of one witness statement attached. ...