California Court of Appeals, Second District, Third Division
LAS VEGAS LAND AND DEVELOPMENT COMPANY, LLC et al., Plaintiffs and Appellants,
WILKIE WAY, LLC, Defendant and Respondent
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC397377 Mary Ann Murphy, Judge.
Law Office of Matthew R. Rungaitis and Matthew R. Rungaitis for Plaintiff and Appellant.
Freeman, Freeman & Smiley, Curtis A. Graham and Dawn B. Eyerly for Defendant and Respondent.
CROSKEY, Acting P. J.
This appeal challenges an order denying a motion to set aside a summary judgment based on the mandatory provision of Code of Civil Procedure section 473, subdivision (b). We conclude that this provision does not apply to summary judgments, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2007, appellant Las Vegas Land and Development Co., LLC (Las Vegas Land) and respondent Wilkie Way, LLC (Wilkie) entered into an agreement for the sale of real property in Hawthorne, California, for $12, 100, 000 (Agreement). The property was leased to Levitz Furniture, LLC pursuant to a 15 year lease entered into in 2003. While the property sale was in escrow, Wilkie’s counsel sent a letter to Las Vegas Land stating that, based on unjustified delays in closing escrow, Wilkie intended to cancel the Agreement and retain Las Vegas Land’s deposit as liquidated damages unless Las Vegas Land executed the sale documents by October 25, 2007. It did so and the sale closed on October 26, 2007.
On November 8, 2007, Levitz Furniture filed for bankruptcy. On August 29, 2008, Las Vegas Land filed a complaint for breach of contract and fraud based on Wilkie’s failure to disclose that Levitz Furniture was going to file for bankruptcy. Wilkie demurred on the grounds that the Agreement contained an express waiver of all claims concerning future income from the property, and it was Las Vegas Land’s responsibility to investigate the property. Las Vegas Land amended its complaint twice, and Wilkie filed an answer. In December 2010, Wilkie moved for summary judgment.
On February 18, 2011, Las Vegas Land moved ex parte for a continuance of the hearing on the summary judgment motion set for March 9, 2011. The court denied the application. Las Vegas Land did not file an opposition to the summary judgment motion, but its counsel appeared at the hearing. The court granted summary judgment based on Wilkie’s evidence. Judgment was therefore entered against Las Vegas Land on March 18, 2011.
Approximately six months later, on September 12, 2011, Las Vegas Land filed a “motion for relief from motion for summary judgment ruling” under section 473, subdivision (b). Las Vegas Land argued that it had not filed an opposition to the summary judgment motion due to “bad lawyering, ” and that it could not obtain an affidavit of fault from its prior attorneys because one was being prosecuted for stealing money from plaintiff and the other had cut off contact with plaintiff. In the motion, Las Vegas Land requested permission to file an opposition to the motion for summary judgment and argued that the court was required to grant this relief pursuant to the mandatory provision of section 473, subdivision (b). Approximately a month later, Las Vegas Land filed a proposed opposition to Wilkie’s motion for summary judgment.
This “motion for relief” was heard on December 16, 2011and denied on the following grounds: (1) Las Vegas Land did not file a copy of the proposed opposition with the motion for relief; (2) no affidavit of fault was submitted; and (3) the failure of Las Vegas Land’s counsel to “perform effectively” did not “constitute a sufficient ground for setting aside a motion for summary judgment ruling.” Las Vegas Land timely appealed.
Las Vegas Land contends that the trial court erred in denying its request to vacate the summary judgment under the mandatory provision of section 473, subdivision (b) because (1) the provision applies to summary judgments, and (2) allows an exception to the requirement that the moving party submit ...