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8 United States District Court 9 Central District of California

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11 RANDALL GARCIA, Individually and Case № 2:21-CV-06892-ODW (AFMx) In behalf of the ESTATE OF JOHN 12 GARCIA,

ORDER DENYING MOTION TO

13 Plaintiffs,

EXTEND TIME TO FILE NOTICE

14 v. OF APPEAL [21]

15 BROADWAY BY THE SEA, and DOES 1 THROUGH 50 16

17 Defendant.

18 19 I. INTRODUCTION & BACKGROUND 20 Plaintiff Randall Garcia initiated this state law negligence action against 21 Defendant Hacienda C.H., Inc. dba Broadway by the Sea in California Superior Court. 22 (See Req. Judicial Notice ISO Notice of Removal Ex. 1 (“Compl.”), ECF No. 3-1.) 23 Garcia contends Defendant acted negligently in providing medical care to Garcia’s 24 father, causing Garcia’s father’s death from COVID-19 complications. (Id. 25 at ¶¶ 8–14.) Defendant removed the action to this Court based on federal officer 26 jurisdiction and federal question jurisdiction under a complete preemption theory. 27 (See Notice of Removal, ECF No. 1.) This Court found that Defendant failed to 28 establish federal subject matter jurisdiction and, on September 20, 2021, remanded the 1 case. (See Order Remanding, ECF No. 17.) Defendant requested a stay of the remand 2 order “to provide Defendant an opportunity to file a Notice of Appeal.” (Req. Stay 2, 3 ECF No. 19.) The Court denied the request for a stay. (Order Den. Stay, ECF 4 No. 20.) 5 On November 9, 2021, after the time to file a non-permissive appeal had 6 expired, Defendant filed this Motion to Extend the Time to File Notice of Appeal, 7 pursuant to Federal Rule of Appellate Procedure (“FRAP”) 4(a)(5)(A). (Mot. Extend 8 Time (“Motion” or “Mot.”), ECF No. 21.) Defendant argues it missed the deadline to 9 appeal due to its counsel’s “accidental calendaring oversight.” (Id. at 2.) No 10 opposition was filed. (See Statement, ECF No. 22.) Having carefully considered the 11 papers filed in connection with the Motion, the Court deems the matter appropriate for 12 decision without oral argument and VACATES the hearing on December 13, 2021. 13 Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons discussed below, the Court 14 DENIES the Motion. 15 II. DISCUSSION 16 FRAP 4(a)(1)(A) requires a party to file a notice of appeal “within 30 days after 17 the . . . order appealed from is entered.” The Court entered the order remanding this 18 action on September 20, 2021, meaning the deadline for filing a non-permissive 19 appeal elapsed after October 20, 2021. (See Order Remanding.) A party may move 20 for an extension of time to file a notice of appeal, including after the deadline has 21 elapsed, provided (i) the motion is filed “no later than 30 days after the time 22 prescribed by this Rule 4(a) expired,” and (ii) the movant demonstrates excusable 23 neglect or good cause. Fed. R. App. P. 4(a)(5)(A). Defendant filed the Motion on 24 November 9, 2021, which is within the thirty-day window of FRAP 4(a)(5)(A)(i). 25 Therefore, the Court must determine only whether Defendant has shown excusable 26 neglect or good cause. Los Altos El Granada Invs. v. City of Capitola, 583 F.3d 674, 27 682 (9th Cir. 2009). 28 1 The Court considers four factors in determining whether an attorney’s failure to 2 file is the result of excusable neglect: “(1) the danger of prejudice to the nonmoving 3 party, (2) the length of delay and its potential impact on judicial proceedings, (3) the 4 reason for the delay, including whether it was within the reasonable control of the 5 movant, and (4) whether the moving party’s conduct was in good faith.” Id. at 683 6 (quoting Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004)). Beginning at the end, 7 the Court finds the fourth factor weighs in Defendant’s favor: beyond Defendant’s 8 delay in bringing this Motion, nothing in the record appears to indicate Defendant’s 9 bad faith. However, the remaining factors tilt against excusing Defendant’s counsels’ 10 neglect. 11 Under the first and second factors, the prejudice, length of delay, and impact on 12 judicial proceedings converge. Defendant contends Garcia will suffer no prejudice 13 because Defendant has not delayed in bringing this Motion. (Mot. 5.) First, 14 Defendant argues it waited only seven days after the expiration of the original 15 thirty-day window, (id.), but the time to appeal elapsed on October 20 and Defendant 16 filed the Motion on November 9. Thus, Defendant delayed in seeking this extension 17 for twenty days beyond the original deadline, not merely seven. Further, this delay 18 adversely impacts the judicial proceedings as it perpetuates needless uncertainty 19 regarding the proper forum and prevents the state court proceedings from moving 20 toward resolution. In this way, the delay also causes Garcia some degree of prejudice. 21 Therefore, the first and second factors weigh slightly against finding excusable 22 neglect. 23 The Court finds the third factor—reason for the delay, and whether it was 24 within Defendant’s control—dispositive. Defendant contends an excusable 25 calendaring error caused its counsel to miss the deadline to appeal because its 26 counsel’s assistant was out of the office on the day the remand order issued, 27 September 20, and she forgot to calendar the deadline upon her return the following 28 day. (Decl. Colin M. Harrison (“Harrison Decl.”) ¶ 8, ECF No. 21-3; Decl. Tonya Jamois §5, ECF No. 21-6.) Even assuming this represents excusable neglect, 2 || September 20 was not the only date on which the deadline to file a notice of appeal 3 || arose. Indeed, the next day, Tuesday, September 21, Defendant requested a stay of the 4|| remand order to permit Defendant time to appeal, and on Friday, September 24, the 5 || Court denied Defendant’s request. Defendant offers no explanation for the failure to 6 || calendar the missed deadline on these dates, when the deadline was certainly at issue. 7 || Additionally, Defendant’s counsel contacted Plaintiff’s counsel on October 14, the 8 | week before the time to appeal elapsed, to inform him of Defendant’s intention to 9 || appeal. (Harrison Decl. 4] 9, Ex. B.) Again, Defendant offers no explanation why the 10 || deadline to file a notice of appeal was not calendared then, when Defendant’s counsel 11 || was clearly contemplating this very issue. On each of these dates, the error at issue 12 | here (failing to calendar the deadline to file a notice of appeal) was reasonably in 13 || Defendant’s counsels’ attention and easily within Defendant’s counsels’ control. Therefore, the Court finds that Defendant has not demonstrated excusable neglect or 15 || good cause to extend the time to file a notice of appeal. 16 If. CONCLUSION 17 For the reasons discussed above, the Court DENIES Defendant’s Motion to 18 || Extend Time to File Notice of Appeal. (ECF No. 21.) 19 20 IT IS SO ORDERED. 21 22 December 10, 2021

24 Géu Liat

5 OTIS D. GHT, II

UNITED STATES DISTRICT JUDGE

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