Inexcusable Neglect Can Still Merit a Continuance

Levingston v. Kaiser Foundation Health Plan, Inc., No. E066271 (D4d2 Aug 17, 2018)

This is some kind of whistleblower case against Kaiser Permanente. Kaiser moved for summary judgment. Plaintiff opposed. Her opposition included some inadvertently disclosed privileged document that apparently belonged to Kaiser. That got her counsel DQ’ed and her opposition struck. The court ordered former counsel not to discuss the document and continued the SJ hearing for six months to let plaintiff get new counsel.

Plaintiff got new counsel. But they failed to file a timely new opposition because they unaware that the prior opposition had been struck because they had apparently not read the court’s DQ order. Or so they said. Of course, they hadn’t read the original opposition, because that would get them DQ’ed too. So how did they know not to read the brief but not know it had been struck?

On the SJ hearing date, when new counsel filed an ex parte application seeking relief from default under Code of Civil Procedure § 473(b), claiming excusable neglect. The trial court held that the neglect wasn’t excusable because a perusal of the court’s file would have shown the original opposition was struck. It also found their explanation somewhat less than credible. The court ultimately granted Kaiser’s summary judgment motion as unopposed.

The Court of Appeal agrees that § 473(b) didn’t provide a for relief from the summary judgment order because the neglect wasn’t excusable. But it nonetheless reverses. The Court equates granting an SJ based on a calendaring mistake with entering a terminating sanction. Although the new lawyers’ neglect might not have been excusable, and their explanation kind of shifty, there was no evidence in the record that their failure to file a new opposition was willful, which is the standard that attaches to terminating sanctions. 

So the trial court could and should have construed the ex parte as a request to continue the SJ hearing by a few weeks so Plaintiff could file an opposition. That, in substance, was basically what Plaintiff was asking for in her ex parte, regardless of the reference to § 473. And given the drastic consequence of in granting an SJ as unopposed because the non-moving party's opposition is late, it would have been—and therefore was—error to deny that request.

Reversed.