In Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 33, the court stated it is an abuse of discretion for the trial court to disregard late-filed papers if excusable neglect is shown under the factors relevant to granting relief under Code of Civil Procedure section 473.Summary of this case from Sameer v. Benett
Docket No. 26744.
August 15, 1983.
Appeal from Superior Court of San Diego County, No. N15450, Gilbert Nares, Judge.
Zubel Van Dusen and Stanley F. Zubel for Plaintiff and Appellant.
McLaughlin Irvin, Lawrence J. McLaughlin and Richard H. Loomis for Defendant and Respondent.
Plaintiff Edwin Kapitanski appeals the summary judgment in favor of defendant Von's Grocery Company, Inc. The narrow question here is whether the trial court properly refused to consider Kapitanski's statements in his declaration opposing Von's motion because his declaration was filed the day before the hearing rather than two days before as required by the San Diego County Superior Court Rules. We explain the trial court's inquiry as to whether it should consider Kapitanski's untimely declaration was equivalent to the court's consideration of a Code of Civil Procedure section 473 motion for relief from excusable neglect. We conclude in failing to consider all relevant criteria under that section and focusing on a single factor unsupported by the record the court abused its discretion. We therefore reverse the judgment.
Division 5, sections 1(d) and (e) of the San Diego County Superior Court Rules provide: "(d) Responding, supplemental, or opposition papers, and proof of service of any notice of motion, order to show cause, demurrer and supporting papers thereof must be served and filed with the court clerk in the law and motion department in which the matter is to be heard no later than 4:30 p.m. two court days before the day of the hearing.
"(e) Failure to file a paper, within such time as is provided in these rules or as may be designated by the Court, may be deemed a waiver of such paper by the party."
All statutory references are to the Code of Civil Procedure.
ante. (1) Shadle City of Corona96 Cal.App.3d 173 157 Cal.Rptr. 624 Weitz Yankosky63 Cal.2d 849 48 Cal.Rptr. 620409 P.2d 600Slusher Durrer69 Cal.App.3d 747 138 Cal.Rptr. 265473 (2a)473473 (3)473 Weitz Yankosky, supra, Slusher Durrer, supra, Robinson Varela67 Cal.App.3d 611 136 Cal.Rptr. 783 Shadle City of Corona, supra, Slusher Durrer, supra, Albermont Petroleum, Ltd. Cunningham186 Cal.App.2d 84 9 Cal.Rptr. 405
Kapitanski declares that even though it appears he was discharged with good cause, the facts are that his immediate supervisors authorized him to show up late for work on a couple of occasions and to fill out his time card by hand a few days following the days of his work, all contrary to Von's general rules and regulations. Whether we believe Kapitanski's explanations will be well received at trial is beyond the scope of this proceeding.
The court relied solely on Neuharth's declaration to decide the merits of Von's summary judgment motion. Probably due to concern over the effect, if any, of the prematurity of Von's notice of facts deemed admitted (see § 1013, subd. (a); Taylor v. Jones (1981) 121 Cal.App.3d 885, 888-889 [ 175 Cal.Rptr. 678] ; see also Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 920 [ 138 Cal.Rptr. 410]), the court considered neither Von's request for admissions nor Kapitanski's untimely answers. As the court explained, ". . . even without the admissions, we still have an affidavit here, a declaration setting forth the reasons for the discharge, which, if uncontroverted, would support the motion for summary judgment. . . ."
(2b) At the summary judgment hearing on Wednesday, November 25, Kapitanski's lawyer said she had been retained the preceding Friday. Her neglect consisted of filing Kapitanski's opposing papers on Tuesday at 2:42 p.m. rather than on Monday at 4:30. Given the short time available in which to act, counsel's conduct appears to have been reasonable. (See Robinson v. Varela, supra, 67 Cal.App.3d at p. 616.) More importantly, Von's has not shown it will suffer prejudice or that injustice will result from proceeding to a trial on the merits. (See Slusher v. Durrer, supra, 69 Cal.App.3d at pp. 754-755.) If the court here believed its receipt of Kapitanski's untimely declaration would have prejudiced Von's, it could have continued the hearing and ordered Kapitanski to pay reasonable costs. (See §§ 473, 594a; see also § 1024.) Instead, the court focused solely on the apparent availability to Kapitanski of other remedies, a fact alleged in Von's pleadings but not otherwise established by the record. In failing to evaluate all factors relevant to its section 473 ruling, particularly where the inconvenience to the court and counsel appears relatively insignificant compared to the substantial prejudice to Kapitanski resulting from an adverse judgment, we conclude the court abused its discretion when it refused to read and consider Kapitanski's declaration.
Brown (Gerald), P.J., and Butler, J., concurred.