Opinion
B162755.
10-28-2003
KRISTEN BUGBEE et al., Plaintiffs and Appellants, v. GENE CALVERT, Defendant and Respondent.
Masry & Vititoe, James W. Vititoe, Theodore C. Phlegar, David E. Lisiewski for Plaintiffs and Appellants. Tseng & Associates, Jennifer T. Tseng, Jeffrey E. Lerman for Defendant and Respondent.
An attorney was unable to attend a deposition after he fell from the roof of his home. Later, he was stricken with what proved to be a fatal illness. The trial court failed to see that this scenario might cause legitimate problems for the attorney. Instead, it issued a terminating sanction to punish the attorney for his nonappearance at the deposition, even though his clients appeared and were ready to be deposed. To make matters worse, the court refused to grant the clients relief from the dismissal, even after the attorney submitted a declaration of fault taking full responsibility for his accident, his illness, and his resulting physical inability to properly represent his clients. We reverse. The terminating sanction was patently improper, and relief from dismissal was mandatory.
FACTS
On April 24, 2000, respondent Gene Calvert ran his vehicle into the back of a car driven by appellant Kristen Bugbee in stop-and-go traffic on the San Diego Freeway. Mrs. Bugbee sued for personal injuries and her husband sued for loss of consortium. Calvert answered the complaint in June 2001. On February 5, 2002, the trial court ordered the Bugbees to appear for a deposition no later than March 4, 2002, and to pay sanctions for their failure to appear at a prior deposition. Calvert gave notice that the deposition would be conducted on February 21, 2002.
On the morning scheduled for the deposition, the Bugbees attorney, solo practitioner William Brodbeck, called opposing counsel to say that he had fallen off his roof at home and was in too much pain to proceed with the deposition, though his clients were ready to proceed. In fact, the Bugbees did appear at the office of Calverts counsel and were informed that their depositions could not go forward in Brodbecks absence.
Calvert brought a motion seeking terminating sanctions for the Bugbees "failure" to show up for their depositions. Calvert noted that this was not the first time that the Bugbees depositions failed to go forward. On several prior occasions, the attorneys had agreed to continue the depositions, and on a single occasion, the Bugbees failed to appear. Calverts motion was granted and the Bugbees case was dismissed without prejudice on April 4, 2002.
Brodbeck was hospitalized in June, July and August 2002, for acute pancreatitis, and in September 2002 remained bedridden on intravenous nourishment. On September 3, 2002, Brodbeck filed a motion to vacate the dismissal of the Bugbees case. Brodbeck submitted two declarations taking full responsibility for the failed February 21, 2002 deposition. Brodbeck stated that he fell and injured his back on February 20. The pain worsened overnight, and he called opposing counsel to delay the deposition. The Bugbees were unaware of their attorneys injury and appeared for the deposition. Brodbeck declared, "I am informed and believe that any and all delay in the discovery process is due to my actions and not those of the plaintiffs."
Brodbeck was rehospitalized at the time of the hearing on the Bugbees motion to vacate. A substitute attorney sent to the hearing by Brodbeck asked that relief be granted pursuant to Code of Civil Procedure section 473, noting that Brodbeck took full responsibility for the lapse that occurred. Counsel for Calvert admitted at the hearing that the Bugbees themselves "did nothing wrong," but he blamed Brodbeck for failing to have another attorney step in to protect the Bugbees interests during Brodbecks medical emergencies.
The Bugbees motion to vacate the dismissal was denied on October 8, 2002. This appeal was filed on November 1, 2002. After the appeal was filed, the trial court entered another order of dismissal in favor of Calvert on January 6, 2003.
DISCUSSION
An order denying a motion to vacate a judgment or dismissal is appealable. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.)
1. Relief From the Dismissal Was Mandatory
Code of Civil Procedure section 473 reads: "[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect." (Italics added.)
All future statutory references are to the Code of Civil Procedure.
Attorney Brodbeck did not cite section 473 in his motion for relief, although he otherwise complied with the statutory requirements by filing his motion within six months and by submitting a declaration attesting that the only reason the scheduled deposition failed to go forward on February 21 was because he sustained an injury in a fall the previous night and was in too much pain to attend. Brodbeck took full responsibility for his absence.
It is obvious that Brodbeck intended to invoke section 473. That he did not do so is most likely attributable to his grave illness and lengthy hospitalization. It is enough that substitute counsel cited section 473 as a basis for relief at the hearing on the motion and that Brodbeck submitted an attorney declaration of fault. Section 473 is, after all, liberally applied. (Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1561.)
In fact, Brodbeck was fatally ill. We take judicial notice of the attorney records of the California State Bar, which show that Brodbeck is deceased.
The purpose of the mandatory relief provision in section 473 is "`to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys." (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Because the law strongly favors trial on the merits, "very slight evidence" is needed to justify relief, and we more closely scrutinize an order that denies relief and prevents a trial on the merits. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343; Avila v. Chua (1997) 57 Cal.App.4th 860, 868.) An attorneys inadvertent failure to appear for a hearing—followed by an affidavit admitting that his absence was solely his fault—provides a basis for mandatory relief. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 601-602.)
In the case at bench, Brodbecks inability to appear at the deposition due to an accident provides ample reason to accord relief. The attorneys nonappearance cannot be imputed to his clients, who appeared for their depositions at the office of defense counsel but were told to go home. Defense counsel admitted at the hearing that the Bugbees "did nothing wrong." The Bugbees cannot legitimately be made to lose their day in court for a "mistake" like this. No one could foresee that counsel would have such an unfortunate accident. Lamentably, defense counsel capitalized on Brodbecks misfortune by seeking a terminating sanction even after the Bugbees, in good faith, appeared for their depositions.
Under the circumstances, given Brodbecks declaration of fault, relief from the order of dismissal was mandatory. A bad accident the night before a scheduled deposition is certainly the sort of "surprise" the Legislature had in mind when it enacted section 473, and there is no earthly reason to punish the Bugbees for their attorneys accident by denying them relief from the dismissal.
2. A Terminating Sanction Is Not Authorized
Even if the Bugbees failed to adequately invoke section 473 as an appropriate basis for relief, the discovery order must nevertheless be reversed because terminating sanctions are excessive and unjust given the facts of this case.
We may review any intermediate ruling, proceeding, order or decision that involves the merits or necessarily affects the order on appeal, and which substantially affects the rights of a party. (§ 906.) The order dismissing the Bugbees case as a terminating sanction is the critical order in this case, because it led directly to the order under review that denies relief from the terminating sanction. The propriety of the sanctions order has been sufficiently joined as an issue on appeal: Calvert argues that the trial court "properly exercised its discretion to impose terminating sanctions." Accordingly, we shall review the underlying discovery sanction order.
The trial court may impose sanctions for "misuses of the discovery process," which include failing to submit to an authorized method of discovery or disobeying a court order to provide discovery. (§ 2023, subd. (a)(4), (7).) The sanctions that may be imposed include monetary sanctions, evidence sanctions, issue sanctions; the most severe sanction, of course, is a terminating sanction dismissing the partys action in full. (§ 2023, subd. (b).)
Discovery sanctions "should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119.) The court may impose nonpunitive sanctions designed to accomplish the object of discovery. (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303-304.)
Terminating or "doomsday" sanctions may be imposed when there are repeated, willful evasions of attempts to obtain discovery. (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244-1246 [willful refusal to comply with three prior court orders to produce documents].) This Court recognizes that dismissal is a "drastic measure which should be employed with caution. . . . [¶] Dismissal is not authorized when it is established that the failure to comply has been due to inability, and not to the willfulness or bad faith, or any fault of the party previously ordered to comply." (Deyo v. Kilbourne, supra, 84 Cal.App.3d at pp. 793-794, citing Vac-Air, Inc. v. John Mohr & Sons, Ins. (7th Cir. 1973) 471 F.2d 231, 233-234, in which discovery could not proceed because an attorney was ill.)
Dismissal was not authorized in the case at bench. The Bugbees were ordered to appear at a deposition, which was scheduled for February 21, 2002. They appeared for the deposition at the office of defense counsel and were instructed to leave because their attorney was injured and could not represent them. We fail to perceive any willfulness or bad faith on the part of the Bugbees, who complied with the prior court order to appear for depositions. Terminating sanctions in this situation are an abuse of discretion: the evidence shows no flagrant discovery violation, only the occurrence of an unforeseen accident, and the illness and death of a partys attorney. None of these problems can be attributed to the Bugbees. It exceeds the bounds of reason to punish the Bugbees for their attorneys misfortunes, especially when opposing counsel concedes that the Bugbees "did nothing wrong" that would warrant such a draconian sanction.
DISPOSITION
The April 4, 2002 order dismissing the Bugbees lawsuit as a terminating discovery sanction is reversed. The October 8, 2002 order denying relief from the dismissal is reversed. The January 6, 2003 order of dismissal is reversed. Costs on appeal are awarded to the Bugbees.
We concur: NOTT, J. and ASHMANN-GERST, J.