Amended Motion for Relief under Code of Civil Procedure section 473(b)
CIVIL CALENDAR – Hon. Joseph J. Solga, Dept. 3 (Criminal Courts Bldg.) at 8:30 a.m.
Julianne Wurm v. James Pitkow et al 24CV000921
AMENDED MOTION FOR RELIEF UNDER CODE OF CIVIL PROCEDURE SECTION 473(b) FROM THE COURT’S MAY 21, 2026, ORDER ADOPTING THE TENTATIVE RULING ON PLAINTIFF’S MOTION TO TAX COSTS
TENTATIVE RULING: The motion is DENIED.
A. PROCEDURAL BACKGROUND
Plaintiff Julianne Wurm (“Plaintiff”) moves, pursuant to Code of Civil Procedure section 473, subdivision (b), 1 for relief from the Court’s May 21, 2026 order adopting the tentative ruling denying Plaintiff’s Motion to Tax Costs (“May 21 Order”).
By Minute Order dated June 30, 2026, Plaintiff’s original Motion for Relief related to the Court’s May 21 Order (“Original Motion”) came on for hearing and was continued to July 31 to allow Plaintiff an opportunity to remedy a notice defect. Plaintiff was directed to prepare an Amended Notice for the continued hearing date, provide timely service of the Amended Notice and moving papers, and file a proof of service (“POS”) pursuant to Rules of Court, rule 3.1300, subdivision (c). (See 6/30/26 Minute Order.)
B. PROCEDURAL DEFECTS
Plaintiff filed an Amended Notice and amended moving papers (“Amended Motion”) on July 6. The filing of amended moving papers is improper, as the Court’s June 30 Minute Order only directed Plaintiff to prepare an Amended Notice. Moreover, the filing of an Amended Motion creates confusion as to whether Defendants’ Opposition to the Original Motion is operative. (See 6/8/26 Opposition.) Because there is no Opposition to the Amended Motion in the file, the Court will consider Defendants’ Opposition to the Original Motion with the present matter. There is no Reply by Plaintiff on file with respect to either the Original or Amended Motion, despite Plaintiff being granted leave to file a reply. (See 6/30/26 Minute Order, p. 2.)
Even more troubling is the fact that there is no POS of either the Amended Motion or Original Motion on Defendants. This was expressly required by the Court’s June 30 Minute Order and Plaintiff has failed to comply therewith. Moreover, as noted, there is no Opposition to the Amended Motion and therefore it is unclear whether Defendants even received a copy of it. Furthermore, this is now the fourth time that Plaintiff has failed to comply with all procedural requirements for filing and serving motions, including the requirement to file a POS.
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On each of the three prior occasions, the Court has stated and cited the rules governing such procedures, and has afforded Plaintiff a continuance to remedy the defects. (See 6/30/26, 4/21/26, 11/25/25 Minute Orders.) The Court cautions Plaintiff’s counsel that the Court may elect to outright deny her motions if she continues to fail to comply with all service and filing requirements going forward. 1 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.
C. SUBSTANTIVE DEFECTS
Even were the Court to overlook the procedural defects, the Motion fails on its merits.
By way of this Motion, Plaintiff seeks an order (1) vacating the Court’s May 21 Order, (2) restoring Plaintiff’s motion to tax costs to the calendar, and (3) permitting oral argument at the restored hearing. (See Amended Notice, 3:3-5.) The only ground raised for the relief sought is that “Plaintiff’s counsel, Dylan Hackett, made a good-faith mistake, and/or was placed in a position of inadvertence, surprise, and excusable neglect, regarding the department in which oral argument was to occur. Counsel received notice identifying Department A.
Counsel appeared in Department A. When counsel appeared in Department A, the Court advised that the matter was in Department B. Counsel immediately proceeded to Department B, but upon arrival, the court clerk advised that the case had already been called.” (Amended Notice, 2:11-16; Amended Mem., 5:1-5, 8-10, 6:5-9, 7:10-14, 20-23, 26-28, 8; see generally Amended Declaration of Dylan Hackett (“Amd. Hackett Decl.”).)
However, as raised through Defendants’ Opposition, even had Plaintiff’s counsel been present at the hearing on May 21, that fact, alone, would not have necessarily permitted Plaintiff’s counsel to present oral argument at the May 21 hearing.
“Generally, oral argument on matters for which a tentative ruling has been posted will be permitted only if a party notifies all other parties and the Court by 4:00 p.m. on the Court day before the hearing that the party intends to appear and argue.... If notice of intent to appear has not been given to all parties and to the Court by 4:00 p.m., no oral argument will be permitted and the tentative ruling will become the Court’s ruling unless all other parties are present and the Court exercises its discretion to permit argument.” (Napa County Superior Court, Local Rule 2.9.)
Here, a tentative ruling was posted for Plaintiff’s motion to tax costs on May 20. The Court’s records reflect that neither party gave notice to the Court of an intent to appear at the hearing on May 21. Moreover, Defendants argue in Opposition—albeit without evidentiary support—that defense counsel was not provided notice. Furthermore, Plaintiff nowhere addresses compliance with Local Rule 2.9 for the May 21 hearing in her present motions. Thus, it is not necessarily true that the Court would have permitted oral argument even if the alleged department confusion underlying Plaintiff’s present motion was not an issue on May 21.
Thus, Plaintiff’s attempt to explain her counsel’s failure to appear at the May 21 hearing is not, on its own, grounds to relieve Plaintiff from the May 21 Order and permit Plaintiff’s counsel to present oral argument at a restored hearing thereon. (See § 473, subd. (b) [“The court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.”].)
Rather, the additional mistake, inadvertence, surprise, or excusable neglect that Plaintiff’s counsel needed to address was with respect to her failure to comply with Local Rule 2.9.
However, as noted, Plaintiff does not address that issue through her Original or Amended Motions, nor did Plaintiff file a reply to Defendants’ Opposition, which expressly raised this point.
The motion fails for the foregoing reason alone. Even assuming arguendo the sole ground raised in the motion was sufficient on its own, Plaintiff has failed to sufficiently show mistake, inadvertence, surprise, or excusable neglect with respect to that ground.
First, the only explanation Plaintiff provides for appearing in Department A on May 21, instead of Department B, is that “[t]he notice [he] received identified Department A.” (Amd. Hackett Decl., ¶ 5.) Without more details, this simply fails to persuade the Court that there was, in fact, any department confusion, particularly when the matter has been pending with this Court since 2024, and has been primarily heard in Department B, where the trial of the matter occurred in March 2026.
Second, Plaintiff presents evidence tending to show that he did not appear in either Departments A or B until approximately 9:10 a.m. on May 21. (See Amd. Hackett Decl., ¶¶ 6-8, 11 [stating that, “when” he appeared in Department A, the Court advised him that the matter was in Department B; he “immediately” proceeded to Department B, but when he arrived in Department B, the court clerk informed him that the case had already been called; and acknowledging that he later came to know the matter was called “at approximately 9:10 a.m.”].) Yet, Plaintiff’s own motion noticed the hearing for 8:30 a.m. Plaintiff does not explain or address the 40-minute delay, separate from the alleged department confusion, and, therefore, fails to justify the requested relief.
For all the foregoing reasons, the Motion is DENIED.
FAMILY LAW CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.
Jesse Powell et al v. Christina Yee et al 25FL000217
[1] APPLICATION OF JOSEPH STUEVER FOR ADMISSION PRO HAC VICE
TENTATIVE RULING: The application is GRANTED.
The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
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