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Lopez v. Clinica Popular Medical Group3/24/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs and appellants Margarita Lopez, Jose Lopez, and Jose Lopez, Jr. purport to appeal from a judgment entered June 27, 2001, an order entered September 10, 2001 (the September order) denying their motion to vacate the judgment, and an order entered January 28, 2002 (the January order) denying another motion to vacate the judgment. We do not have jurisdiction to review the judgment or the September order because plaintiffs' notice of appeal as it relates to the judgment and the September order was not timely filed. With regard to the January order, we hold that the trial court did not abuse its discretion by denying plaintiffs' motion to vacate the judgment because the motion was not filed within six months after entry of the judgment, as required by Code of Civil Procedure section 473, subdivision (b).
BACKGROUND
In 1997, plaintiffs filed a medical malpractice action against Clinica Popular Medical Group, Daniel Berdakin, and the County of Los Angeles for injuries related to the birth of Jose Jr. Clinica filed a motion for summary judgment in October 1998. The hearing on the motion was continued several times at plaintiffs' request, in part because plaintiffs' original lawyer withdrew from the case and plaintiffs had a difficult time retaining a new lawyer. The motion was finally heard 11 months after it was filed, with plaintiffs represented by new counsel, and the trial court denied it.
A year and a half later, in April 2001, plaintiffs' new counsel withdrew from the case. Shortly thereafter, Clinica filed another motion for summary judgment, scheduled to be heard a month before trial. Plaintiffs, who once again were not represented by counsel, did not file an opposition to the motion, did not ask for a continuance, and did not attend the hearing on the motion. At the hearing, the trial court found that there was no evidence that Clinica was responsible for plaintiffs' alleged injuries, and granted Clinica's motion. Judgment was entered in favor of Clinica on June 27, 2001.
On the same day that judgment was entered, plaintiffs, who had again retained new counsel, filed an ex parte motion to vacate the judgment under section 473 on the ground that plaintiffs did not oppose Clinica's summary judgment motion because they were not represented by counsel and did not know the significance of the motion. The trial court denied the ex parte motion.
Five weeks later, plaintiffs brought a noticed motion to vacate the judgment. This motion once again was brought under section 473, and once again asserted that relief from the judgment was appropriate because plaintiffs were not represented by counsel at the time of the summary judgment motion and did not know the significance of the motion. On September 10, 2001, the trial court denied plaintiffs' motion on the grounds that (1) plaintiffs had not complied with section 473's requirement to accompany the motion with a copy of a proposed pleading (in this case, papers in opposition to Clinica's motion for summary judgment), (2) plaintiffs made an inadequate showing as to what constituted excusable neglect, and (3) plaintiffs' assertion that they did not understand the significance of the motion for summary judgment was not credible.
Three and a half months later, plaintiffs brought a second noticed motion
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