NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK JULLIAN GARDEN, 

Plaintiff-Appellant, 

 v. 

COUNTY OF LOS ANGELES; 

JONATHAN P. SCHNERENGER, Deputy; 

IVAN BRESCIANI, Deputy; DOES, 1 

through 100, inclusive, 

Defendants-Appellees.

No. 20-56192 

D.C. No. 2:19-cv-01529-CJC-MAA

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted November 8, 2021

Pasadena, California

Before: COLLINS and LEE, Circuit Judges, and BAKER,**Judge.

Plaintiff-Appellant Mark Jullian Garden appeals the district court’s denial of 

his motion for relief from judgment under Federal Rules of Civil Procedure 

60(b)(1) and 60(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we 

affirm in part, vacate in part, and remand.

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.

FILED

DEC 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

I

In this action under 42 U.S.C. § 1983, Garden alleges that Los Angeles 

County Sheriff Deputies Defendants Jonathan P. Schnerenger and Ivan Bresciani 

committed multiple constitutional violations in connection with his August 2015 

arrest and that they and the County should be held liable. 

In July 2020, Defendants’ counsel (Scott Carpenter) reached out to 

Plaintiff’s counsel (James Bryant) in an effort to meet and confer about a 

contemplated summary judgment motion, as required by the local rules. See C.D. 

Cal. Local Civ. Rule 7-3. Under the then-operative schedule, the last date on 

which such motions could be set for hearing was August 24, 2020, and that meant 

that the motion had to be filed no later than July 27, 2020. See id. Rule 6-1. On 

July 24, Bryant responded to Carpenter by email, noting that he wanted to take 

certain in-person depositions, but that had not been possible due to the situation 

with Covid in Los Angeles. Defendants proceeded to file the summary judgment 

motion by the July 27 deadline. Because that motion was noticed for hearing on 

August 24, Garden’s opposition to that motion was due one week later, on August 

3, 2020. See id. Rule 7-9. 

Garden did not file any opposition by that deadline, however. Instead, on 

August 11, 2020, Bryant emailed Carpenter and proposed that, in light of the 

difficulties created by the pandemic, both sides stipulate to a “new proposed 
3

scheduling order” under which the hearing on the summary judgment would be 

continued “pending completion of discovery,” including the depositions of the 

officer defendants. After a further exchange of emails, the two counsel eventually 

spoke by phone on August 18 and agreed in principle to propose a new schedule to 

the court. Bryant agreed to draft the proposed stipulation and to send it to 

Carpenter the next day. 

Later that same day, however, the district court issued an order cancelling 

the summary judgment hearing (which was still six days off) and granting the 

summary judgment motion on the merits. Garden filed a timely motion for relief 

from judgment, asserting that relief was warranted under Rule 60(b)(1) due to 

Bryant’s “excusable neglect.” Specifically, Garden argued that Bryant had been 

unable to take in-person depositions of the defendant officers due to the pandemic 

and that Bryant had undertaken “steps to avoid an unopposed motion for summary 

judgment being ruled on” by conferring with defense counsel “and agreeing on a 

stipulation which would have prevented this scenario.” Garden argued that, under 

the four-factor test set forth in Pioneer Investment Services Co. v. Brunswick 

Associates Ltd. Partnership, 507 U.S. 380, 395 (1993), his counsel’s neglect was 

excusable. Alternatively, Garden contended that relief was warranted under Rule 

60(b)(6), which authorizes relief from judgment based on “any other reason that 

justifies relief.” The district court denied the motion and Garden timely appeals.
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II

We review the denial of a motion under Rule 60 for abuse of discretion, see 

Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989), but a district court necessarily 

abuses its discretion when it “base[s] its decision on an erroneous legal standard or 

clearly erroneous findings of fact,” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 

2012) (internal quotation omitted). Here the district court denied the motion on the 

grounds that Garden had failed to show that his counsel’s “inadvertence or neglect 

was excusable and due to circumstances beyond his control.” Specifically, the 

court stated that Garden’s motion rested “solely” on his counsel’s “inability to 

conduct in-person depositions due to the ongoing coronavirus pandemic,” and the 

court concluded that, in light of the availability of “videoconference depositions,” 

this consideration did not show “excusable neglect or other reason justifying relief 

from judgment.” We affirm the district court’s denial of relief under Rule 

60(b)(6), but we vacate its ruling with respect to Rule 60(b)(1). 

A

We have held that, in determining whether a judgment should be set aside 

under Rule 60(b)(1) based on asserted “excusable neglect,” the district court 

should apply the test set forth in Pioneer. See Briones v. Riviera Hotel & Casino, 

116 F.3d 379, 381–82 (9th Cir. 1997). Under Pioneer, the “determination of 

whether a party’s neglect is excusable ‘is at bottom an equitable one, taking 
5

account of all relevant circumstances surrounding the party’s omission.’” Id. at 

382 (quoting Pioneer, 507 U.S. at 395). Among the “relevant circumstances” to be 

considered are “[1] the danger of prejudice to the [nonmovant], [2] the length of 

the delay and its potential impact on judicial proceedings, [3] the reason for the 

delay, including whether it was within the reasonable control of the movant, and 

[4] whether the movant acted in good faith.” Pioneer, 507 U.S. at 395. These 

“four enumerated factors,” however, are “not an exclusive list.” Briones, 116 F.3d 

at 381.

Here, the district court’s order does not mention or apply any of the Pioneer

factors. Defendants nonetheless argue that the district court’s failure to apply 

Pioneer was not legal error, because in their view Pioneer is inapplicable here as a 

matter of law. According to Defendants, there is no predicate “neglect” to warrant 

consideration of the Pioneer factors in this case, because Bryant’s failure to timely 

respond to the summary judgment motion by August 3 was a conscious decision 

and not the result of negligence. We think this focus is too narrow. The record 

reflects that, shortly before the then-current due date for filing the summary 

judgment motion, Bryant specifically alerted opposing counsel of Garden’s need to 

complete certain discovery, and it further reflects that, after the summary judgment 

motion was filed, Bryant apparently thought that he still had time to request a 

revised schedule so long as he did so before the hearing date on the motion. 
6

Indeed, Garden’s motion specifically relied on his counsel’s efforts to come to 

agreement with defense counsel on a revised schedule precisely “to avoid an 

unopposed motion for summary judgment being ruled on.” Bryant was, of course, 

wrong in thinking that he had time to work out a revised schedule, but that is a 

form of neglect that should have been considered under Pioneer. Because there is 

no indication in the district court’s order that it applied the Pioneer standard or 

considered the relevant factors, the court applied the incorrect legal standard. See 

M.D. v. Newport-Mesa Unified Sch. Dist., 840 F.3d 640, 643 (9th Cir. 2016);

Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000). We therefore 

vacate its denial of Garden’s request for relief under Rule 60(b)(1). 

Garden asks us to weigh the Pioneer factors ourselves, but we agree with 

Defendants that, in the circumstances of this case, the district court should 

undertake this analysis in the first instance. We note, however, that the district 

court’s order could be read to wrongly suggest that, to obtain relief here, Garden 

was required to show that his neglect was “due to circumstances beyond his 

control.” Such a lack of control is a relevant factor that should be considered, but 

Pioneer explicitly rejects the view that the “excusable neglect” standard is “limited 

to situations where the failure to timely file is due to circumstances beyond the 

control of the filer.” 507 U.S. at 391. The standard, as the Court explained, is a 

more “flexible” one, id. at 389, and the district court erred to the extent that it 
7

applied a stricter standard here. Moreover, in evaluating each of the Pioneer

factors on remand, the district court should give due weight to the fact that the 

parties apparently had agreed to a revised schedule, as well as to the fact that some 

adjustment of the one-week schedule for filing an opposition in this case may well 

have been warranted. 

Accordingly, we remand to the district court with instructions to apply the 

relevant Pioneer factors in making the overall “equitable” determination whether 

there was excusable neglect, “taking account of all relevant circumstances 

surrounding the party’s omission.” Id. at 395.

B

We affirm, however, the district court’s denial of relief under Rule 60(b)(6). 

The Pioneer Court made clear that that rule may not be invoked as a substitute for 

Rule 60(b)(1). “To justify relief under subsection (6), a party must show 

‘extraordinary circumstances’ suggesting that the party is faultless in the delay.” 

507 U.S. at 393. Where, as here, a party or its counsel “is partly to blame for 

delay, relief must be sought within one year under subsection (1) and the party’s 

neglect must be excusable.” Id. Rule 60(b)(6) thus provides no basis for relief.

AFFIRMED in part, VACATED in part, and REMANDED.