Filed 8/17/18

                           CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                      DIVISION TWO


LISA LEVINGSTON,

        Plaintiff and Appellant,                       E066271

v.                                                     (Super.Ct.No. RIC1400688)

KAISER FOUNDATION HEALTH                               OPINION
PLAN, INC. et al.,

        Defendants and Respondents.




        APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge.

Reversed and remanded with directions.

        Shegerian & Associates, Carney R. Shegerian, and Jill McDonell for Plaintiff and

Appellant.

        Davis Wright Tremaine, John P. LeCrone, Rochelle L. Wilcox, and Aaron N.

Colby for Defendants and Respondents.

        The attorneys for plaintiff Lisa Levingston, O.D., failed to file an opposition to a

motion for summary judgment. They had been substituted into the case after

Levingston’s former attorneys were disqualified and the opposition that the former
attorneys had filed was stricken. At the hearing on the motion, Levingston’s new counsel

claimed they had not known that they needed to file a new opposition; they requested

relief from default, under Code of Civil Procedure section 473, subdivision (b), and a

continuance. The trial court found that new counsel’s failure was inexcusable neglect. It

therefore granted summary judgment.

       We will hold that, due to her new counsel’s neglect — which the trial court quite

properly found to be inexcusable — Levingston was not entitled to relief under Code of

Civil Procedure section 473, subdivision (b); nevertheless, under controlling case law,

she was entitled to a continuance to file an opposition.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Levingston filed this action on January 24, 2014. She named as defendants Kaiser

Foundation Health Plan Inc., Kaiser Foundation Hospitals, and Southern California

Permanente Medical Group (collectively Kaiser). She claims that she is a

“whistleblower”; she asserts causes of action including retaliation and wrongful

termination.

       Initially, Levingston was represented by the Mathews Law Group. Later, Helmer

Friedman, LLP associated in as co-counsel.

       On April 1, 2015, Kaiser filed a motion for summary judgment. On June 2, 2015,

Levingston’s counsel filed her opposition. Almost immediately, Kaiser filed an ex parte

application to expunge privileged information and to disqualify Levingston’s counsel.



                                             2
Although the application itself is not in the record, apparently it was made on the ground

that Levingston’s opposition included a privileged document that Kaiser’s counsel had

disclosed inadvertently.

       In response to the application, the trial court ordered portions of Levingston’s

opposition sealed. It declined to disqualify Levingston’s counsel ex parte, but it set a

hearing date for a disqualification motion.

       Kaiser then filed a noticed disqualification motion. On July 17, 2015, the trial

court granted the motion. It disqualified Levingston’s counsel and enjoined them from

discussing the contents of the privileged document. It also struck Levingston’s entire

opposition. It continued the hearing on the motion for summary judgment to January 22,

2016 (i.e., approximately six months), “to allow for Plaintiff to retain new counsel, and

for new counsel to prepare and file a new Opposition to Defendants[’] Motion for

Summary Judgment . . . .”

       On November 16, 2015, Levingston substituted Shegerian & Associates, Inc. as

her new counsel. Their new opposition to the motion for summary judgment was due by

January 8, 2016. (Code Civ. Proc., § 437c, subd. b)(2).) However, they failed to file a

timely opposition.

       On January 15, 2016, Kaiser filed a notice that Levingston had failed to file an

opposition.

       On January 22, 2016 — the date set for the hearing on the motion for summary

judgment — Levingston’s new counsel filed an ex parte application for relief under Code



                                              3
of Civil Procedure section 473, subdivision (b), and for a continuance. According to the

evidence in that application, when they took over the case, they believed that the motion

for summary judgment had been fully briefed. Neither Levingston nor Levingston’s

former counsel told them anything about “the circumstances surrounding the

disqualification of former counsel” or about “the previously filed summary judgment

papers” — supposedly out of concern about violating the trial court’s injunction. Until

new counsel received Kaiser’s notice of failure to file an opposition, which was on

January 20, 2016, they intended to just show up at the hearing and argue the motion.

       At the hearing on January 22, 2016, the trial court’s tentative ruling was to grant

the ex parte application, because it felt that the failure to file an opposition was due to an

excusable “miscommunication.” After hearing argument, however, it changed its mind.

       In that argument, new counsel claimed that they had been relying (1) on what

Levingston told them, which was that “everything had been briefed,” and (2) on the case

file they received from former counsel, which did not include the order disqualifying

former counsel and striking the opposition. That led to this exchange:

       “[NEW COUNSEL]: . . . [A]ll we knew is that they were just disqualified.

       “THE COURT: And that was not a big red flag that you should look at the court’s

file and look at the order and what the status of the case was?”

       New counsel then claimed that, as of January 20, 2016, they had not yet started

preparing for the summary judgment hearing: “[W]e normally prepare for [a] summary

judgment motion the day before the hearing.” The trial court asked:



                                               4
       “THE COURT: Had you read th[e] opposition?

       “[NEW COUNSEL]: We had not read it yet.

       “THE COURT: Do you have it?

       “[NEW COUNSEL]: I — don’t believe —

       “THE COURT: Be careful with that answer. I’ve ordered it not be distributed.

       “[NEW COUNSEL]: I don’t believe we had it and we were going to get it off the

court’s docket.

       “THE COURT: I will tell you what you are telling me now is not very credible,

and it’s certainly I do not think excusable neglect. It’s hard for me to believe . . . that you

have been in the case since November, have not looked at the case file to the point where

you did not know the order that struck the opposition existed, were prepared to come here

and argue a dispositive summary judgment motion and . . . had not looked at any

opposition to prepare for that argument . . . .”

       The trial court ruled, “I do not find excusable neglect in any way whatsoever.” It

therefore denied the ex parte application. It then granted the motion for summary

judgment.

       On January 25, 2016, Levingston’s new counsel filed a noticed motion for relief

under Code of Civil Procedure section 473, subdivision (b), requesting both mandatory




                                               5
relief and discretionary relief. The motion included a proposed opposition to the motion

for summary judgment.1

       On March 22, 2016, after hearing argument, the trial court denied the motion. To

the extent that the motion sought discretionary relief, it ruled that there was still no

excusable neglect, and there were no grounds for reconsideration under Code of Civil

Procedure section 1008. To the extent that the motion sought mandatory relief, it ruled

that such relief is not available from an order granting summary judgment.

       On April 21, 2016, the trial court entered judgment in favor of Kaiser and against

Levingston.

       On May 19, 2016, Levingston’s new counsel filed a motion for new trial. On June

10, 2016, the trial court denied the motion.

       Levingston appealed from the judgment and from the order denying a new trial.

                                               II

            THE DENIAL OF LEVINGSTON’S EX PARTE APPLICATION

       Levingston contends that the trial court erred by refusing to continue the hearing

on the motion for summary judgment so that she could file a new opposition.

       Levingston’s ex parte application requested relief from default under Code of

Civil Procedure section 473, subdivision (b); the trial court denied the application


       1     New counsel had a redacted version of the opposition previously filed by
Levingston’s former counsel; they appear to have used that as the basis for their
opposition papers.



                                               6
because it found no excusable neglect. Levingston does not challenge that finding. She

argues, however, that her application was, in substance, a request for a continuance. We

agree.

         The application expressly sought “an order granting relief from plaintiffs counsel’s

inadvertent failure to file an opposition . . . and to allow the filing of late opposition and

to continue the current summary judgment briefing schedule by at least Monday, January

25, 2016.” (Italics added.)

         Moreover, the trial court recognized that Levingston was seeking a continuance.

At the very beginning of the hearing, it said, “[T]he ex parte application . . . is to

essentially . . . to continue the hearing on summary judgment and allow the filing of an

opposition.” It also said, “My tentative is to grant the ex parte application to continue the

summary judgment hearing.” A sufficiently long continuance would have automatically

reopened the time for filing an opposition (Code Civ. Proc., § 437c, subd. (b)(2)),

removing any need to grant relief from default. Moreover, even assuming the opposition

would still be deemed late, a trial court has discretion to consider late-filed papers

without the need of granting relief from default. (Cal. Rules of Court, rule 3.1300(d).))

         “In seeking a continuance of a summary judgment motion, a plaintiff has

essentially two options. The first option is to comply with section 437c, subdivision (h),

which states, ‘If it appears from the affidavits submitted in opposition to a motion for

summary judgment or summary adjudication, or both, that facts essential to justify

opposition may exist but cannot, for reasons stated, be presented, the court shall deny the



                                               7
motion, order a continuance to permit affidavits to be obtained or discovery to be had, or

make any other order as may be just. The application to continue the motion to obtain

necessary discovery may also be made by ex parte motion at any time on or before the

date the opposition response to the motion is due.’” (Hamilton v. Orange County

Sheriff’s Dept. (2017) 8 Cal.App.5th 759, 764-765.)

       The trial court could properly deny a continuance under Code of Civil Procedure

section 437c, subdivision (h). As mentioned, any request for such a continuance must be

submitted on or before the opposition is due. Obviously, that did not happen here. In any

event, the trial court could reasonably find that the essential facts could have been

presented — by filing a timely opposition — but they simply had not been.2

       “Where a plaintiff cannot make the showing required under section 437c,

subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary

standard applied to requests for a continuance. [Citation.] This requires a showing of

good cause. [Citation.]” (Hamilton v. Orange County Sheriff’s Department, supra, 8

Cal.App.5th at p. 765.) “Reviewing courts must uphold a trial court’s choice not to grant

a continuance unless the court has abused its discretion in so doing. [Citation.]” (In re

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)


       2        Kaiser argues that Code of Civil Procedure section 437c, subdivision (h)
applies only when the party opposing the motion seeks a continuance to take further
discovery. That is its usual purpose but not its exclusive purpose. Rather, it allows the
trial court to “order a continuance to permit affidavits to be obtained or discovery to be
had, or make any other order as may be just.” (Italics added.)



                                              8
       As our Supreme Court has noted, “[t]erminating sanctions such as an order

granting summary judgment based upon procedural error ‘“have been held to be an abuse

of discretion unless the party’s violation of the procedural rule was willful [citations] or,

if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing

[that] less severe sanctions would not produce compliance with the procedural rule.

[Citations.]”’ [Citations.]” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364,

fn. 16, italics added.)

       For example, in Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89,

plaintiff Bradley (who was in pro. per.) filed an opposition to defendant Bank’s motion

for summary judgment, but he failed to file a separate statement. Based on that

“procedural defect,” the trial court granted the motion. (Id. at p. 92.) The appellate court

held that the trial court abused its discretion by failing to grant a continuance (even

though Bradley had not requested one). (Id. at pp. 92-99.)

       The court explained: “Failure to file a new responsive statement was a curable

defect from which the Bank suffered no prejudice. Nor is there any showing Bradley had

previously violated any pre-trial rules or engaged in any dilatory conduct. Furthermore, a

separate responsive statement is not an end in itself. Its purpose is to ease the trial court’s

burden and put the moving party on notice of the evidence which is disputed by

respondent. [Citation.] Therefore, unless the trial court has reason to believe no

responsive statement would be filed even if the respondent was afforded a reasonable

opportunity to file one, the respondent should be afforded that opportunity rather than



                                              9
suffer a judgment not supported by a decision on the merits. [Citation.]” (Security

Pacific Nat. Bank v. Bradley, supra, 4 Cal.App.4th at pp. 98-99.)

       Similarly, in Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, the

trial court granted the defendant’s motion for summary judgment because the plaintiff’s

counsel had failed to file a timely opposition and had then failed to appear at the hearing.

(Id. at pp. 1156-1157.) The plaintiff’s counsel filed a motion for reconsideration,

claiming that the summary judgment motion had been taken off calendar. The trial court

found that the motion had not been taken off calendar and denied the motion for

reconsideration. (Id. at p. 1157.)

       The appellate court reversed. Citing Security Pacific, it said, “An order based

upon a curable procedural defect (such as the failure to file a separate statement), which

effectively results in a judgment against a party, is an abuse of discretion. [Citation.]”

(Kalivas v. Barry Controls Corp., supra, 49 Cal.App.4th at p. 1161.) “[The plaintiff]’s

failure to file a separate statement . . . was a curable defect, from which [the defendant]

suffered no prejudice. Furthermore, there was no showing that [the plaintiff] had

previously violated any pretrial rules or engaged in any dilatory conduct.” (Id. at p. 1162;

see also Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 161-162 [trial court granted

summary judgment based on plaintiff’s failure to file a timely separate statement; “it was

an abuse of discretion for the court to impose a terminating sanction for a mere violation

of a procedural rule.”]; Parkview Villas Assn., Inc. v. State Farm Fire and Casualty Co.

(2005) 133 Cal.App.4th 1197, 1210-1218 [trial court abused its discretion by granting



                                             10
summary judgment based on defects in plaintiff’s separate statement, rather than

continuing the hearing].)3

       Here, there was no evidence that new counsel’s failure to file an opposition was

willful. We recognize that the trial court found that new counsel lacked credibility. We,

too, find it unbelievable that they supposedly knew the disqualification order was not in

their files yet did not obtain a copy from the trial court.4 It is equally mind-boggling that

they supposedly took on a case in which a motion for summary judgment was pending

yet were not going to look at the papers until one day before the hearing. Nevertheless,

“[w]ithout more, the disregard or disbelief of the testimony of a witness is not affirmative

evidence of a contrary conclusion. [Citations.]” (Beck Development Co. v. Southern

Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.) Thus, if, in fact, new

counsel was not candid, that would not be affirmative evidence that their failure was



       3       At oral argument, counsel for Kaiser asserted that Kaiser had not had an
opportunity to brief the applicability of the willfulness standard. Levingston, however, in
her opening brief, argued that there was no “‘good reason’” to deny a continuance. She
also argued that “[p]unishing a plaintiff because of a mistake in calendaring an opposition
is not grounds to deny a short continuance to allow a late filing and to allow the motion to
be heard on the merits.” This raised the issue of what would constitute good cause to
deny a discretionary continuance and whether that standard was met here. In response,
Kaiser (much as it did at oral argument) chose to take the position that the trial court
could not grant a discretionary continuance unless it found excusable neglect. The mere
fact that the parties did not cite the relevant cases does not preclude us from deciding the
issue in accordance with the applicable law.
       4        If they had merely looked at the trial court’s docket — publicly available
online — it would have shown that the trial court struck the opposition at the same time
as it disqualified former counsel.



                                             11
willful. This is particularly true because there is no conceivable motive for a deliberate

failure to file an opposition. How could they possibly have benefited?5

       There was likewise no history of abusing pretrial procedures. Levingston’s former

counsel had committed an ethical violation and, as a result, had been disqualified, but

there was no evidence that Levingston herself had participated in that violation. And her

new counsel had not abused any procedures. How could they? They had not done

anything.

       Kaiser claims it would have been prejudiced by a continuance because that would

have further delayed the summary judgment that it was entitled to. To recap, this case

was filed in January 2014. The motion for summary judgment was filed in April 2015.

The hearing on the motion, originally set for July 2015, was continued to January 2016;

Kaiser did not object to that continuance. Moreover, at that time, the trial court said, “To

the extent new counsel needs more time, I’ll consider that . . . .” Thus, Kaiser could not

justifiably rely on obtaining a summary judgment, if at all, in January 2016. Moreover, it

does not claim that it did rely in any way. Levingston’s new counsel offered to file an

opposition the very next court day (and ultimately they actually did so). This would have

required the trial court to continue the hearing by only about two weeks. (See Code Civ.

Proc., § 437c, subds. (b)(2), (b)(4).) Even a delay of, say, another couple of months




       5     At oral argument, counsel for Kaiser conceded, “[T]hey didn’t intend to
miss the deadline . . . .”



                                             12
would not take the case outside the usual run of litigation and would not cause Kaiser any

concrete or identifiable harm.6

       Kaiser relies on Henderson v. Pacific Gas and Electric Co. (2010) 187

Cal.App.4th 215. There, in response to the defendant’s motion for summary judgment,

the plaintiff filed belated and inadequate opposition papers. (Id. at pp. 220-221.) The

plaintiff also filed an ex parte application for continuance under Code of Civil Procedure

section 473c, subdivision (h). (Henderson v. Pacific Gas and Electric Co., supra, at

p. 220.) The trial court denied the requested continuance, struck the opposition, and

granted the motion for summary judgment. (Id. at p. 221.)

       After a judgment was entered, the plaintiff filed a motion for relief under Code of

Civil Procedure section 473, subdivision (b). (Henderson v. Pacific Gas and Electric

Co., supra, 187 Cal.App.4th at p. 221.) The trial court found no excusable neglect and

denied the motion. (Id. at p. 224.)

       The appellate court began by saying, “[O]ur review is limited to whether the trial

court erroneously issued the May 8, 2009 order denying relief under section 473(b).”

(Henderson v. Pacific Gas and Electric Co., supra, 187 Cal.App.4th at p. 224.) It did not

explain why, but it seems the plaintiff did not file a timely appeal from the judgment.

(See Id. at p. 221.) Ultimately, it held that the trial court properly denied the post-

       6        Kaiser does not claim that it incurred any attorney fees or other expenses as
a result of new counsel’s failure to file an opposition; it has not asked us to impose (or to
give the trial court an opportunity to impose) monetary sanctions if the judgment is
reversed. We therefore see no basis for imposing sanctions.



                                              13
judgment motion (id. at pp. 226-232), in part because “the trial court reasonably could

have concluded that any surprise or neglect . . . part was inexcusable.” (Id. at p. 231.)

       Henderson does not affect our conclusion. Due to the apparent failure in

Henderson to file an appeal from the judgment, the question of whether the trial court

should have continued the summary judgment hearing simply was not before the

appellate court. It did uphold the ruling that the failure to file a timely and proper

opposition was not due to inexcusable neglect. Here, however, for the reasons we have

already discussed, the trial court could not deny a continuance on the ground that new

counsel’s neglect was inexcusable. The bottom line is that, under the circumstances here

— no willfulness, no previous procedural abuses, and no prejudice — the trial court

should not have scourged Levingston for her new counsel’s sin.

       Levingston argues that the denial of a continuance was prejudicial because her

proposed opposition was meritorious — i.e., it would have required the trial court to deny

the motion for summary judgment. Kaiser does not argue otherwise.7 Instead, it

responds that this is a “hypothetical question” that “is not properly before the Court.”

(Italics omitted.) It adds, “If the Court concludes the trial court abused its broad

discretion . . . , the remedy is remand for full briefing on Defendants’ summary judgment

motion. . . . The trial court, not this Court, should be the first to resolve that issue.” (Fns.

omitted.) This is tantamount to a concession that, if there was error at all, the error

       7    Kaiser argues only that, once the opposition was stricken, its motion for
summary judgment was properly granted.



                                              14
requires reversal. We therefore decline to reach the merits of the motion for summary

judgment — which would require us to review the 750-page motion and the 4,098-page

opposition — solely to confirm the existence of prejudice.

       In sum, we conclude that the trial court erred by denying a continuance and that

this error was prejudicial. In light of our holding, we need not decide whether the trial

court erred by denying Levingston’s subsequent motion for relief under Code of Civil

Procedure section 473, subdivision (b). We also need not decide whether it erred by

denying her motion for a new trial.

                                             III

                                      DISPOSITION

       The judgment is reversed. The trial court must (1) allow Levingston to file an

opposition to Kaiser’s motion for summary judgment and (2) set a briefing and hearing

schedule for the motion. Levingston is awarded costs on appeal against Kaiser.

       CERTIFIED FOR PUBLICATION
                                                                RAMIREZ
                                                                                        P. J.


We concur:

McKINSTER
                          J.

MILLER
                          J.




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