196 Cal. App. 4th 907
Cal. Ct. App.2011Background
- June 2008 Cowan sues Krayzman for unpaid legal fees; summons served on Krayzman June 22, 2008; default entered July 23, 2008; Krayzman moves to quash service; process server's declaration controverts; Krayzman seeks relief from default under CCP 473(b) after default entry.
- Krayzman later moves to vacate; tentative ruling denies; he withdraws the motion and files a second version addressing purported but contested issues.
- Trial court adopts the tentative ruling as final on the first motion to vacate and later denies the second, unused motion; Krayzman appeals challenging the withdrawal and treatment of the second motion.
- The court finds the first motion to vacate was denied on its merits, not procedurally, with credibility determinations supporting the denial.
- The court concludes Groth Bros. Oldsmobile governs withdrawal of tentative rulings; Krayzman’s second motion was improper and the final order stands; sanctions for the appeal are denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court ruled on the motion to vacate on the merits | Cowan contends the court denied on the merits | Krayzman argues the court never reached merits due to withdrawal | Yes, merits ruling upheld |
| Whether withdrawal of the first motion and filing a second version was improper | Cowan argues withdrawal after adverse tentative ruling was improper | Krayzman argues procedural defect warranted withdrawal | Withdrawal not allowed; second motion rejected under Groth rule |
Key Cases Cited
- Groth Bros. Oldsmobile, Inc. v. Gallagher, 97 Cal.App.4th 60 (Cal. Ct. App. 2002) (tentative ruling system; improper withdrawal undermines process)
- Franklin Capital Corp. v. Wilson, 148 Cal.App.4th 187 (Cal. Ct. App. 2007) (supports cautious treatment of withdrawals after tentative rulings)
- Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613 (Cal. Ct. App. 1994) (credibility as a fact-finding issue in § 473(b) determinations)
- Lang v. Hochman, 77 Cal.App.4th 1225 (Cal. Ct. App. 2000) (mandatory relief limited when client caused default; integrity of defense hindered by client conduct)
- State Farm Fire & Casualty Co. v. Pietak, 90 Cal.App.4th 600 (Cal. Ct. App. 2001) (attorney fault and evidence required for § 473(b) relief)