Las Vegas Land & Development Co. v. Wilkie Way, LLC

This appeal challenges an order denying a motion to set aside a summary judgment based on the mandatory provision of Code of Civil Procedure section 473, subdivision (b). We conclude that this provision does not apply to summary judgments, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2007, appellant Las Vegas Land and Development Company, LLC (Las Vegas Land), and respondent Wilkie Way, LLC (Wilkie), entered into an agreement for the sale of real property in Hawthorne, California, for $12.1 million (Agreement). The property was leased to Levitz Furniture, LLC, pursuant to a 15-year lease entered into in 2003. While the property sale was in escrow, Wilkie’s counsel sent a letter to Las Vegas Land stating that, based on unjustified delays in closing escrow, Wilkie intended to cancel the Agreement and retain Las Vegas Land’s deposit as liquidated damages unless Las Vegas Land executed the sale documents by October 25, 2007. It did so and the sale closed on October 26, 2007.

On November 8, 2007, Levitz Furniture filed for bankruptcy. On August 29, 2008, Las Vegas Land filed a complaint for breach of contract and fraud based on Wilkie’s failure to disclose…