Aisle 3 Concepts, LLC vs. BMS Scolop, Inc.

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

$164,500. (According to the moving papers, plaintiff A3C did recently re-let the premises to a third party in August 2025 and has incurred additional costs in connection therewith.) Defendants filed their answer to complaint on 7/13/2023. They also filed a cross-complaint against A3C for breach of contract, negligence, fraudulent inducement, and constructive eviction but the Court notes this cross-complaint was subsequently dismissed without prejudice at the request of defendants. (See, 11/21/2025 Min. Order.)

Plaintiff A3C filed on 8/15/2025 a motion for summary adjudication on its two causes of action against defendants on the grounds there are no triable issues of material fact and plaintiff is entitled to judgment as a matter of law on each cause of action because (1) defendant BMS breached the lease agreement by terminating early and failing to pay rent and (2) defendants Brian and Maryann Simmons breached their guaranty by failing to pay the sums owed by defendant BMS under the lease. The motion was noticed for hearing on 11/6/2025.

Defendants did not timely file any opposition or other objection to the motion for summary adjudication but they did file on 10/24/2025 a document entitled “Request for Relief to File Late Opposition to Motion for Summary Adjudication Pursuant to California Rules of Court Rule 3.1590(m),” albeit without filing any noticed motion (or related ex parte application) seeking affirmative relief under Rule 3.1590(m) or other provision of law relative to the then-pending motion for summary adjudication.

In advance of the 11/6/2025 hearing date, this Court issued a tentative ruling granting plaintiff A3C’s motion for summary adjudication since the moving papers were found to be sufficient to satisfy plaintiff A3C’s initial burden of production under Code of Civil Procedure §437c(p)(1) with respect to the latter’s two causes of action and defendants failed to produce competent, admissible evidence showing the existence of any triable issue of material fact which precluded summary adjudication in favor of plaintiff A3C on the causes of action alleged in the complaint. A formal order granting summary adjudication was entered on 12/19/2025 but this Court declined to sign the proposed judgment submitted by plaintiff A3C given the present motion was already on file. (See, 1/22/2026 Min. Order.)

Moving Papers. Defendants now move for relief from their failure to file a timely opposition to plaintiff’s Motion for Summary Adjudication and to request the hearing on plaintiff’s motion be continued to a later date to permit plaintiff to file a reply to the opposition papers which accompany the present motion for relief. (Not. of Mot., p.1:6- 13.) More specifically, defendants seek relief under Code of Civil Procedure §473(b) and request that this Court set aside its 11/6/2025 order, continue the hearing on the summary adjudication motion and to make a determination on the merits of such motion. (Mov. MPA, p.1:2-11.) According to the moving papers, defendants’ failure to timely file an opposition to the summary adjudication motion was the result of “excusable neglect and mistake in the calendaring of the Opposition deadline” and that

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

the proposed opposition papers which are attached to the present motion “raise[] triable issues of material fact.” (Id., at p.1:13-17; p.3:1-7.) Thus, “Defendants respectfully request that the Court (1) accept Defendants’ Opposition to the Motion and to set aside the Tentative Ruling dated November 5, 2025; and (2) to continue the hearing on the Motion for Summary Adjudication to allow Plaintiff to properly Reply and (3) for the Court to consider Defendants’ Opposition to the Motion prior to ruling on the merits.” (Id., at p.3:10-17.)

As indicated above, defendants rely on Code of Civil Procedure §473(b) which they contend is a “remedial statute” that must be “liberally construed to ensure that parties have their day in court and that cases are decided on their merits rather than on procedural technicalities,” having separate provisions for both discretionary and mandatory relief. (Mov. MPA, p.3:27-p.4:16.) Defendants maintain that their failure to file a timely opposition was the result of excusable neglect, specifically a calendaring error by counsel’s staff, as well their counsel’s participation in other legal proceedings in the State of Ohio. (Id., at p.4:17-22.)

It is further asserted that defendants attempted to promptly remedy the situation by filing the present motion the day after the Court issued the ruling granting summary adjudication in favor of plaintiff A3C, thereby reinforcing the entitlement to relief under §473(b). (Id., at p.5:6-21.)

Although not specifically discussed in the moving points & authorities, the Schlosser Declaration attests in Paragraph 5 that defendants’ counsel’s calendaring system indicated the opposition to the summary adjudication motion was due on 10/24/2025, just 13 days before the 11/6/2025 hearing date, instead of the requisite 20 days before the 11/6/2025 hearing date.

Opposition. Plaintiff A3C opposes, arguing that the present motion for relief should be denied because defendants “fail[] to identify a single mistake that would explain or excuse [their] failure to timely oppose the MSA” and the reality is that this failure was the result of their lack of diligence. (Opp., p.4:5-9.) Had defendants been diligent, they would have filed their opposition on the date they believed it was due rather than 10 days later, and this inexcusable conduct does not warrant relief. (Id., at p.5:9-11.) The opposition contends mandatory relief under Code of Civil Procedure §473(b) is not available because a motion for summary adjudication is neither a dismissal nor a default or default judgment. (Id., at p.7:21-p.8:23.)

Plaintiff also asserts that defendants’ “calendaring issue” does not justify discretionary relief because it neither excuses nor explains their failure to timely oppose the summary adjudication motion insofar as they “have not provided any actual evidence of this alleged calendaring error” such as a “print out from the calendaring system” showing 10/24/2025 as the incorrect date for the opposition.” (Opp., p.9:25-28.) In short, plaintiff

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

maintains “[t]here is nothing to corroborate the claim [the opposition] was not calendared properly. Nor is there an explanation as to how [October] 24th was [erroneously] triggered as the opposition date.” (Id., at p.10:1-2.) The opposition adds that even if defendants were mistaken in believing their opposition to summary adjudication was due 10/24/2025, it remains undisputed that defendants simply did not file any opposition on that date but instead, they waited another 10 days to file their purported opposition papers. (Id., at p.10:3-12.) This, according to plaintiff A3C, indicates there was no actual calendaring error which justifies relief under Code of Civil Procedure §473(b)’s provision for discretionary relief. (Id., at p.10:13-p.11:10.)

Plaintiff’s opposition contends that a variety of other facts and circumstances referenced in the moving papers are either irrelevant to defendants’ failure to file a timely opposition and/or do not support the relief requested by the instant motion (see, Opp., p.11:11- p.13:20) but concludes by claiming that if this motion for relief is granted, plaintiff A3C will suffer prejudice in the form of “additional (and unnecessary) attorney fees in relitigating the MSA,” the inability to proceed to trial back in December 2025, and unnecessary delays which provide defendants with “additional time to dissipate their assets to hinder [A3C’s] ability to collect the amounts it is owed” (Id., at p.14:8-21).

Discussion

At the outset, the opposition appears correct in asserting that the moving papers do not actually specify whether defendants are seeking relief pursuant to Code of Civil Procedure §473(b)’s provision for mandatory relief or for discretionary relief, or both. However, as pointed out by plaintiff A3C, §473(b)’s provisions for mandatory relief do not appear applicable to this matter insofar as defendants’ motion does not seek relief from either (1) a “default entered by the clerk against [defendants] “which will result in entry of a default judgment” against them or (2) a “default judgment or dismissal entered against [defendants].” Instead, the moving papers by their own terms merely seek relief from defendants’ failure to file a timely opposition to plaintiff A3C’s motion for summary adjudication and as such, any potential relief available to defendants is found only within §473(b)’s provision for discretionary relief.

Plaintiff A3C’s primary challenge to defendants’ entitlement to discretionary relief under Code of Civil Procedure §473(b) rests in part on the assertion that defendants failed to “provide[] any actual evidence of this alleged calendaring error,” such as a “print out from the calendaring system” showing 10/24/2025 as the incorrect date for the opposition.” (Opp., p.9:25-28.) Plaintiff’s argument is unavailing. While it may be true that the moving papers do not include any “print out from the calendaring system” showing the claimed calendaring error or other documentary proof that the calendaring system specified 10/24/2025 as the date for defendants to file their opposition, relief

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

under §473(b) (either discretionary or mandatory) does not require the production of documentary proof to establish or otherwise corroborate the purported calendaring error and notably, plaintiff’s opposition papers offer no legal authority claimed to necessitate documentary proof of the calendaring error. If production of documentary proof were a prerequisite for relief under §473(b), then a party who inadvertently fails altogether to calendar a filing deadline (rather than merely calendaring an incorrect deadline) would ostensibly be precluded from relief under §473(b).

However, there is a vast body of California case law holding that relief under §473(b) is available under such circumstances and thus, plaintiff’s suggestion that defendants were obliged to provide documentary proof of the calendaring error shall be rejected. In the end, this Court finds that the Schlosser Declaration filed in support adequately establishes the existence of the underlying calendaring error and this alone is sufficient to invoke the discretionary relief provisions of §473(b). (See, Schlosser Decl., ¶¶2-5.)

Plaintiff A3C also takes issue with the fact that defendants did not actually file any opposition on the mis-calendared 10/24/2025 date but instead, waited another 10 days to file their purported opposition on 11/3/2025. (Opp., p.10:3-12.) According to plaintiff A3C, defendants’ failure to file their opposition on the incorrect deadline their calendaring system showed constitutes proof there was no actual calendaring error and thus, defendants are not entitled to discretionary relief under Code of Civil Procedure §473(b). (Id., at p.10:13-p.11:10.)

Although defendants’ failure to file their opposition papers on 10/24/2025, the erroneous date shown by their calendar system, is troubling, this Court is not persuaded that this constitutes proof there was no underlying calendaring error which supports relief under §473(b). As indicated above, the Schlosser Declaration filed with the moving papers competently establishes the existence of the underlying calendaring error and there is no evidence which directly contradicts the assertions therein.

Plaintiff’s challenge to the veracity of the Schlosser Declaration in this regard is based mainly upon speculation which in this Court’s view is outweighed by Mr. Schlosser’s explicit assertions under penalty of perjury. Additionally, while not dispositive of the issue, defendants did file on 10/24/2025 a “Request for Relief to File Late Opposition to Motion for Summary Adjudication ” and this document included a consistent declaration from Mr. Schlosser attesting to the same calendaring error, which also weighs against plaintiff’s suggestion there was never any actual calendaring error.

In the end, although the Court does agree as plaintiff argues that the better course of action would have been for defendants to file their opposition to the summary adjudication motion on 10/24/2025 notwithstanding the fact it was already late, their failure to do so does not in this Court’s view necessarily preclude discretionary relief under §473(b).

Plaintiff A3C’s opposition concludes with an assertion that if defendants’ present motion for relief is granted, plaintiff A3C will suffer “prejudice” in the form of “additional (and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

unnecessary) attorney fees in relitigating the MSA,” the inability to proceed to trial back in December 2025, and unnecessary delays which provide defendants with “additional time to dissipate their assets to hinder [A3C’s] ability to collect the amounts it is owed” (Opp., p.14:8-21). These factors, individually or collectively, do not preclude this Court from granting discretionary relief under Code of Civil Procedure §473(b). Importantly, neither the discretionary nor the mandatory provisions for relief in §473(b) mentions “prejudice” as a relevant consideration or otherwise suggests relief is available only in the absence of claimed prejudice.

But even if “prejudice” were a required consideration for discretionary relief under Code of Civil Procedure §473(b), plaintiff A3C’s claim of incurring “additional (and unnecessary) attorney fees in relitigating the MSA” is not persuasive insofar as the summary adjudication motion will not actually be “relitigated,” as the motion was in effect granted on 11/6/2025 in large part because there was no opposition. The prospect of plaintiff having to now address a previously nonexistent substantive opposition cannot be fairly characterized as “relitigating” the summary adjudication motion, especially where plaintiff would not have expected that no opposition would be filed in the first instance.

A more accurate description is that plaintiff will now need to “litigate” the motion for the first time without the unexpected windfall of no opposition being filed. While it is now impossible for this action to proceed to trial on the prior 12/15/2025 trial date, this fact does not justify denial of relief under §473(b) and plaintiff A3C remains free to seek a new trial date by appropriate motion directed to the Presiding Judge. The opposition’s final suggestion that a further delay in these proceedings will allow defendants “additional time to dissipate their assets to hinder [A3C’s] ability to collect the amounts it is owed” (Opp., p.14:8-21) also does not in this Court’s view preclude relief here and in any event, there is currently no evidence that defendants have actually made any attempt to hide or dissipate assets to hinder the collection of the amounts plaintiff claims are now owed.

Paragraph 19 of the Weber Declaration in opposition merely indicates defendants will have additional time to hide and dissipate assets but does not include any specific attestation that defendants are actively engaged in such conduct. As such, Paragraph 19 is fundamentally speculative in nature.

In closing, the Court must acknowledge that Code of Civil Procedure §473(b) is “a remedial statute, and as such is to be construed liberally, which is to say expansively, to favor its object that cases be adjudicated on the merits rather than determined by default.” (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 894.) In light of these principles and plaintiff A3C’s failure to proffer any legitimate reason why defendants are precluded from discretionary relief under §473(b), this Court will exercise its discretion in favor of granting the relief requested by defendants.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 04/14/2026 Hearing on Motion - Other for Relief from Failure to File Timely Opp to plf's MSA and Continue the Hearing Pursuant to CCP section 473(b) in Department 16D

Disposition

For the reasons explained above, defendants’ “Motion for Relief from Failure to File Timely Opposition to Plaintiff’s Motion for Summary Adjudication and [to] Continue the Hearing Pursuant to Code of Civil Procedure §473(b)” is GRANTED.

The 11/6/2025 Minute Order granting plaintiff A3C’s motion for summary adjudication, as well as the formal order entered on 12/19/2025, are hereby VACATED.

Defendants shall separately file and serve their proposed opposition papers in the same form which was attached to the moving papers no later than 4/17/2026. (Although not required by court rule or statute, defendants are directed to present a copy of this order when the opposition papers are presented for filing.)

Plaintiff A3C may file and serve its reply to the aforementioned opposition papers no later than 4/30/2026.

The Court hereby resets plaintiff A3C’s motion for summary adjudication for hearing on 5/26/2026 at 1:30 p.m. in this department.

Defendants to provide notice of this ruling and file proof of service of same within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)