Araujo v. L.A. Unified School Dist. CA2/3

Opinion

Filed 9/15/26 Araujo v. L.A. Unified School Dist. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOSHUA ARAUJO, a Minor, etc., B341345 et al.

(Los Angeles County

Plaintiffs and Appellants, Super. Ct. No. 20STCV25573)

v.

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant and Respondent.

APPEAL from orders of the Superior Court of Los Angeles County, Lynne M. Hobbs, Judge. Affirmed.

DRE Law, Darren M. Richie and Vincent Chiaverini for Plaintiffs and Appellants.

Hurrell, Thomas C. Hurrell and Nzhdeh Aghazaryan for Defendant and Respondent.

‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Plaintiff and appellant Joshua Araujo, a minor, by and through his guardian ad litem, Sandra Alvarez, sued defendant and respondent Los Angeles Unified School District (LAUSD) after another student’s parent assaulted him on his high school campus. After the trial court granted LAUSD’s unopposed motion for summary judgment and dismissed the action, Araujo moved to vacate the dismissal under Code of Civil Procedure section 473, subdivision (b) (section 473(b)).1 The trial court denied Araujo’s motion and his subsequent motion for reconsideration. Araujo now challenges both orders on appeal. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND In December 2019, Araujo, a freshman at Abraham Lincoln High School, was attacked by Michael Flores, the parent of another student. Flores believed Araujo threw a firecracker through the driver’s side window of his car while Flores was picking up his son from school. Flores chased Araujo through the school’s campus before striking him on the back of the head. The incident occurred after school hours. No campus aide was present at the school gate through which Flores entered the campus.

In July 2020, Araujo filed an action against LAUSD, the school, and Flores.2 As to LAUSD and the school, the first amended complaint asserted causes of action for general negligence and negligent hiring, retention, and supervision. The first amended complaint identifies two attorneys from DRE Law,

1 Further undesignated statutory references are to the Code of Civil Procedure. 2 The school and Flores are not parties to this appeal.

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A.P.C. (DRE), as Araujo’s counsel of record, Darren Richie and Antonio Castillo III.

In July 2023, LAUSD moved for summary judgment. The motion argued that undisputed evidence showed LAUSD owed no duty of care to Araujo because Flores’s conduct was unforeseeable. LAUSD noticed the hearing for October 10, 2023, and served the motion by e-mail and personal service. The service list identifies Castillo, DRE attorney May Nachum, and a third DRE employee, Hilda Valdez, as the persons served. Araujo did not file an opposition.

The hearing on LAUSD’s motion was not transcribed.

According to the court’s minute order, attorney Diego Brito appeared remotely for Richie. The trial court heard argument, then adopted its tentative ruling granting LAUSD’s motion for summary judgment. In a written ruling, the court concluded LAUSD met its burden to show that no triable issues existed as to the foreseeability of Flores’s actions or as to LAUSD’s alleged breach of duty to Araujo. The order further noted that Araujo “has filed no opposition to the present motion.” On October 19, 2023, the court entered judgment and dismissed the entire action with prejudice.

On April 16, 2024, Araujo filed a motion to vacate the dismissal under section 473(b). The motion attributed Araujo’s counsel’s failure to file an opposition to the summary judgment motion to “associate departures,” “remote workforce installation post-COVID,” and LAUSD’s service of the motion to an office where the handling attorneys were not located. In a supporting affidavit, Richie declared that the associates handling Araujo’s case left the firm “at and during the time of when the opposition was due.” They “did not make anyone at the firm aware” or

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“make any preparations for the proper transfer of this task prior to departure.” Richie “was not aware of this fact until the review of the civil litigation portfolio status of the firm.”

LAUSD opposed Araujo’s section 473(b) motion. LAUSD argued that its personal and e-mail service of the motion, and Brito’s subsequent appearance and argument at the hearing, demonstrated that DRE knew about the motion before the opposition deadline. LAUSD also argued that mandatory relief under section 473(b) was not available for summary judgment motions, and discretionary relief was not available for conduct amounting to malpractice.

In a supporting declaration, defense counsel explained that the summary judgment motion was served via e-mail and personally served on Castillo at DRE’s Beverly Hills office, where the Director of Intake received it; a paralegal at DRE sent an e- mail, copied to Castillo, requesting an editable version of the statement of undisputed facts two months before the opposition was due; Brito “had a chance to be heard” at the summary judgment hearing; and Araujo’s counsel previously moved to vacate an earlier dismissal in 2021. Defense counsel attached to the declaration documents reflecting these facts.

On June 18, 2024, the court heard argument and denied the motion. In a written ruling, the court concluded there was no basis for relief under section 473(b) because the personal service of the motion, the follow-up e-mails, and Brito’s appearance at the hearing demonstrated that “Plaintiff’s counsel was at all times aware of the pending motion for summary judgment.” The court also noted that Richie’s declaration was “vague as to the timing of the departure of the two attorneys, or to the specific omissions involved in their departure.” Further, the trial court

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concluded that mandatory relief under section 473(b) was not available after summary judgment involving an “ ‘adjudication on the merits.’ ” Finally, the court found Araujo made no showing of diligence to establish that the motion was made “ ‘within a reasonable time,’ ” as required by section 473(b).

On July 8, 2024, Araujo moved for reconsideration of the trial court’s order denying the section 473(b) motion. On September 5, 2024, the trial court denied the motion.

On September 30, 2024, Araujo filed a notice of appeal identifying the appealed orders as the June 20, 2024 order denying his motion to vacate dismissal and the September 5, 2024 order denying the motion for reconsideration.

DISCUSSION

I. Appealability LAUSD contends that we lack jurisdiction to hear Araujo’s appeal because his notice of appeal was untimely. We disagree.

Rule 8.104(a)(1) of the California Rules of Court “provides that ‘a notice of appeal must be filed on or before the earliest of:[3] [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.’ This time limit is jurisdictional: ‘no court may extend the time to file a notice of appeal’ (rule 8.104(b)), and relief cannot be conferred by stipulation,

3 Further undesignated rule references are to the California Rules of Court.

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waiver, or estoppel [citation]. ‘If a notice of appeal is filed late, the reviewing court must dismiss the appeal.’ (Rule 8.104(b).)” (Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643, 649.)

A single document is required to trigger the 60-day period, “either a ‘Notice of Entry’ so entitled or a file-stamped copy of the judgment or appealable order—that is sufficient in itself to satisfy all of the rule’s conditions . . . .” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905.) “[T]he required ‘document entitled “Notice of Entry” ’ . . . must bear precisely that title.” (Id. at p. 903.)

On June 20, 2024, LAUSD served Araujo with a “Notice of Ruling re Plaintiff’s Motion to Vacate.” (Italics added.) The notice attached a non-conformed copy of the trial court’s June 18, 2024 minute order denying Araujo’s motion to vacate dismissal. Because LAUSD’s notice did not strictly comply with the requirements of rule 8.104(a)(1)(B), service of the notice did not trigger the 60-day period to appeal. (R & J Sheet Metal, Inc. v. W.E. O’Neil Construction Co. of California (2025) 111 Cal.App.5th 878, 890 [“Notice of Ruling” that did not attach file- stamped copy of minute order did not trigger 60-day deadline to appeal]; Gassner v. Stasa (2018) 30 Cal.App.5th 346, 357 [same].) Araujo instead had 180 days from the June 18, 2024 order denying his motion to vacate to file a notice of appeal. (Rule 8.104(a)(1)(C), (e).) His notice of appeal filed September 30, 2024, was timely. (R & J Sheet Metal, at p. 890.)

Further, while an order denying a motion for reconsideration is not separately appealable, “if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.” (§ 1008, subd. (g); see Stats. 2011,

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ch. 78, § 1.) Araujo’s motion for reconsideration concerned the trial court’s order denying the motion to vacate under section 473(b), which is appealable under section 904.1, subdivision (a)(2). (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) We therefore also have jurisdiction to consider Araujo’s challenge to the order denying his motion for reconsideration.4 II. The Trial Court Did Not Err In Denying Araujo’s Motion to Vacate A. Legal principles and standard of review Section 473(b) gives courts the discretion to set aside “a judgment, dismissal, order, or other proceeding taken against [a] party through the party’s mistake, inadvertence, surprise, or excusable neglect.” Additionally, assuming a party makes a timely and complete application for relief, the statute requires courts to set aside entries of default, default judgments, and dismissals caused by an attorney’s mistake, inadvertence, surprise, or neglect. (§ 473(b).)

The statute thus contains “ ‘two distinct provisions for relief from default’ [citation]—one makes relief discretionary with the court; the other makes it mandatory. [Citation.] The two provisions differ in several other respects: (1) the mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals, while discretionary relief is available for a broader array of orders

4 Although Araujo’s opening brief addressed the merits of the trial court’s summary judgment ruling, his reply brief expressly disclaims any attempt to appeal that order. Any such appeal would be untimely, and we disregard all arguments challenging the merits of the summary judgment ruling.

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[citations]; (2) the mandatory relief provision is broader in scope insofar as it is available for inexcusable neglect [citation], while discretionary relief is reserved for ‘excusable neglect’ [citations]; and (3) mandatory relief comes with a price—namely, the duty to pay ‘reasonable compensatory legal fees and costs to opposing counsel or parties’ (§ 473, subd. (b)).” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)

“ ‘[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation.] Thus, to the extent that the applicability of the mandatory relief provision does not turn on disputed facts, but rather, presents a pure question of law, it is subject to de novo review.” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.) “We review the trial court’s discretionary decision to grant or deny relief under section 473(b) for an abuse of discretion.” (County of San Bernardino v. Mancini (2022) 83 Cal.App.5th 1095, 1103.)

B. Section 473(b)’s mandatory relief provision does not apply to summary judgment If a party files a section 473(b) motion that complies with the statutory prerequisites, the trial court is required to vacate a “default entered by the clerk,” “default judgment,” or “dismissal” caused by “mistake, inadvertence, surprise, or neglect” on the part of the party’s attorney. Courts have concluded that the mandatory relief provision does not apply to summary judgments because they are not a default, default judgment, or dismissal within the meaning of section 473(b).

For example, in English v. IKON Business Solutions, Inc.

(2001) 94 Cal.App.4th 130 (English), a plaintiff in an employment discrimination lawsuit did not file a substantive opposition to the

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defendant employer’s motion for summary judgment and instead requested a continuance to obtain further discovery. (Id. at pp. 133–134; see § 437c, subd. (h).) The trial court denied the request and granted summary judgment based on the employer’s evidence. (English, at p. 134.) The plaintiff moved to set aside summary judgment under section 473(b)’s mandatory provision, which the trial court denied. (English, at pp. 134, 136.) The Court of Appeal affirmed for the “fundamental reason” that “the mandatory provision of section 473(b) simply does not apply to summary judgments because a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b).” (Id. at p. 138.)

In “tracing the history and development” of the mandatory provision, the English court observed that the Legislature intended the mandatory provision to be far more limited in scope than its discretionary counterpart. Incremental revisions to the provision expanded mandatory relief only to default, default judgment, and dismissal. (English, supra, 94 Cal.App.4th at pp. 138–141.) The court then concluded that the plain meaning of the terms “default,” “default judgment,” and “dismissal” could not “reasonably be construed to encompass a summary judgment, regardless of whatever omissions or failures by counsel may have preceded entry of that judgment.” (Id. at p. 144.) The court narrowly interpreted “default” to mean the default entered by a clerk or the court when a defendant failed to answer a complaint, and “default judgment” to refer to the judgment entered after such default was entered, both of which were plainly distinct from summary judgment. (Id. at pp. 143–144.)

To give effect to “the legislative intent to achieve parity between defendants and plaintiffs in their entitlement to relief

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under the mandatory provision of section 473(b),” the English court narrowly construed “dismissal” “as having a limited meaning similar to the term ‘default judgment.’ ” (English, supra, 94 Cal.App.4th at p. 145.) The court defined “dismissal” as “ ‘those dismissals which occur through failure to oppose a dismissal motion—the only dismissals which are procedurally equivalent to a default.’ ”5 (Ibid., citing Peltier, supra, 34 Cal.App.4th at p. 1817.) “Dismissal,” the English court concluded, therefore meant “ ‘the removal . . . by a court’ ‘of an application for judicial relief.’ ” (English, at p. 148.) Because a trial court can grant summary judgment only if it “ ‘consider[s] all of the papers and determined no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law,’ ” the court reasoned, summary judgment did not “constitute a removal of the plaintiff’s application for judicial relief, but rather an adjudication of that application based on the undisputed facts before the court.” (Id. at p. 149.)

The English court’s conclusion is now the majority view.

(See, e.g., Henderson v. Pacific Gas & Electric Co. (2010) 187

5 Quoting its earlier decision in Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809 (Peltier), the court explained: “ ‘[A] default judgment is entered when a defendant fails to appear, and, under section 473, relief is afforded where the failure to appear is the fault of counsel. Similarly, under our view of the statute, a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion, and relief is afforded where that failure to appear is the fault of counsel. The relief afforded to a dismissed plaintiff by our reading of the statute is therefore comparable to the relief afforded a defaulting defendant.’ ” (English, supra, 94 Cal.App.4th at p. 141, quoting Peltier, at pp. 1820–1821.)

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Cal.App.4th 215, 228; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 (Huh); Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 295–296.) We likewise agree with English and the cases that have reached a similar conclusion. The plain language of section 473(b)’s mandatory provision, its legislative history, and its role in the statutory scheme support a narrow construction of “default,” “default judgment,” and “dismissal” that does not include summary judgment. The provision identifies only default, default judgment, and dismissal as the targets of the mandate. Expanding these terms to incorporate summary judgment, which necessarily requires an adjudication of a factual record irrespective of the nonmoving party’s conduct, would disrupt the legislative goal of placing “plaintiffs on equal footing with defendants who are defaulted for failing to respond to an action.” (Noceti v. Whorton (2014) 224 Cal.App.4th 1062, 1066; see English, supra, 94 Cal.App.4th at pp. 138–141.) Finally, “[s]ince nearly every discretionary dismissal . . . is caused by the mistake, inadvertence or neglect of the plaintiff’s attorney, a broad reading of section 473(b)’s mandatory relief provision involving dismissals would absurdly abrogate the discretionary dismissal delay statutes by implication.” (Noceti, at p. 1066.)

Araujo relies on a case that predates English to support his argument. In Avila v. Chua (1997) 57 Cal.App.4th 860, the appellate court concluded the dismissal that followed an attorney’s failure to timely serve oppositions to motions for summary judgment was “directly analogous to a default judgment” because the attorney’s error deprived the plaintiff of an adjudication on the merits of her claims. (Id. at p. 868.)

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However, like numerous other courts, a different panel of this court previously rejected Avila.6 In Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1092, this court agreed with the reasoning of the English court. We explained: “Although the Avila court held that the mandatory provision should be extended to apply to cases that are ‘directly analogous to a default judgment,’ we conclude that section 473, subdivision (b) should be limited to the narrow class of cases in which a default judgment or a dismissal has been entered. . . . ‘[T]o read the mandatory provision of Code of Civil Procedure section 473 to apply whenever a party loses his or her day in court due to attorney error goes far beyond anything the Legislature has done.’ [Citation.]” (Ibid.) We see no reason to depart from our prior reasoning.

“In the appropriate circumstances, of course, relief from a summary judgment may be available to either a plaintiff or a defendant under the discretionary provision of section 473(b). [Citation.] This is so because discretionary relief under the statute is not limited to defaults, default judgments, and dismissals, but is available from any judgment.” (English, supra, 94 Cal.App.4th at p. 149.) We examine below the trial court’s decision to deny Araujo discretionary relief.

6 The division of this appellate district that issued Avila later disapproved of the case and agreed with English. (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1000.)

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C. The trial court did not abuse its discretion by declining to vacate the dismissal under its discretionary authority

The discretionary relief provision allows the trial court to set aside a judgment caused by a party’s “mistake, inadvertence, surprise, or excusable neglect.” (§ 473(b).) “In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) “In determining whether to grant relief under this provision, the court is vested with broad discretion [citation], and its factual findings are entitled to deference.” (Solv–All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.)

The trial court here did not abuse its discretion in denying discretionary relief. We first consider the court’s determination that the motion was unreasonably delayed.

The discretionary provision of section 473(b) requires a motion for relief to “be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” “While six months—the longest time allowable—represents the outside limit ‘of the court’s jurisdiction to grant relief in any event, the “reasonable time” test stands as an independent consideration and in any given situation, its determination, within the maximum six-month period, “depends upon the circumstances of that particular case.” ’ [Citation.]” (Huh, supra, 158 Cal.App.4th at p. 1422, quoting Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 530 (Benjamin).)

“What constitutes a ‘reasonable time’ depends on the circumstances of each case ‘but definitively requires a showing of

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diligence in making the motion after the discovery of the default.’ [Citation.]” (Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal.App.5th 308, 316.) “[T]he proper procedure appears to involve the presentation of some explanation, by affidavit or testimony, of any extended delay, and the court then determines whether such explanation may be deemed sufficient to justify the granting of the relief sought.” (Benjamin, supra, 31 Cal.2d at p. 529.) Thus, “ ‘ “[t]he moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.” ’ [Citation.] Whether a party has acted diligently is a factual question for the trial court.” (Huh, supra, 158 Cal.App.4th at p. 1420.)

The record amply supports the trial court’s determination that Araujo’s section 473(b) motion was not made within a reasonable time. The court entered summary judgment and dismissed the action on October 19, 2023. The court clerk mailed the notice of entry of judgment and dismissal to Richie at DRE’s Beverly Hills office the same day. However, Araujo did not file his motion to vacate dismissal until April 16, 2024, exactly six months from the entry of dismissal. Richie offered no explanation for the extensive delay. He stated that he was not aware of the failure to file an opposition and resulting dismissal “until the review of the civil litigation portfolio status of the firm,” but he did not specify when he conducted this review. He did not assert any facts explaining how or why Brito’s appearance at the hearing in his stead in October 2023 failed to put him on notice that LAUSD’s summary judgment had gone unopposed. Nor did Richie explain why the clerk’s service of notice of entry of

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judgment did not put him on notice that the action was dismissed.

The court could reasonably conclude on this record that Richie failed to make a sufficient showing of diligence, and it did not abuse its discretion in denying Araujo’s motion on the ground that it was not made within a reasonable time. This conclusion alone was an adequate and proper basis for the trial court to deny discretionary relief. We need not discuss the court’s remaining bases. III. Araujo Forfeited His Challenge to the Trial Court’s Ruling on His Motion for Reconsideration Araujo also challenges the trial court’s order denying his motion for reconsideration. However, he has failed to proffer any arguments on appeal specific to the reconsideration order. Any challenge to the order is therefore forfeited.

“An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2020) 52 Cal.App.5th 141, 211.)

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DISPOSITION

The trial court’s orders denying Araujo’s section 473(b)

motion and motion for reconsideration are affirmed. LAUSD to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ADAMS, P. J.

We concur:

HANASONO, J.

KARNOW, J.*

* Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.