Opinion
A148474
05-26-2017
CAITLIN FITTING et al., Plaintiffs and Respondents, v. PAUL KRAAIJVANGER, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT BY THE COURT:
It is ordered that the opinion filed herein on May 26, 2017, be modified as follows:
1. On page 3, at the end of the first sentence of the third paragraph, add as footnote 2 the following footnote, which will require renumbering of all subsequent
2 Plaintiffs contend that the copy of the Uchiyama declaration included in appellant's appendix is not the same declaration that was considered by Judge Crompton in denying the motion to vacate. The copy of the declaration in the record was from a motion filed in February 2016 and noticed before a different judge. In response to an ex parte motion by plaintiffs, Kraaijvanger was ordered to "re-notice" the motion before Judge Crompton, but a copy of the declaration as renoticed is not included in the appellate record. Because the order requiring resubmission of the motion merely required it to be renoticed, there is no reason to presume that the original declaration differed from the version considered by Judge Crompton, and plaintiffs do not contend that the two versions were
different in any way. In the absence of evidence that the renoticed motion differed from the original, we find no inadequacy in the appellate record.
Plaintiffs' petition for rehearing is denied.
There is no change in the judgment. Dated:
/s/_________
Margulies, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CGC-12-524821)
Soon after filing this harassment action against their landlord, plaintiffs were granted an order to preserve evidence, requiring the landlord to allow plaintiffs' experts to inspect cameras maintained on the property. After the landlord's attorney ignored the preservation order and plaintiffs' repeated requests for compliance, the trial court awarded terminating sanctions and eventually entered a default judgment against defendant Paul Kraaijvanger on the basis of the sanctions. Kraaijvanger filed a motion to vacate the judgment under the mandatory relief provisions of Code of Civil Procedure section 473, accompanied by a declaration in which his attorney detailed her unjustified disregard for the preservation order. The trial court refused to grant mandatory relief from the default, concluding such relief is unavailable when the default is not entered by the court clerk. We reverse the ruling and vacate the default judgment.
I. BACKGROUND
Much of the procedural background of this case is contained in our decision in a prior appeal, Fitting v. Kraaijvanger (Aug. 31, 2015, A140976) [nonpub. opn.] (Fitting I). As explained in Fitting I, the eight plaintiffs in this action are or were tenants in a San Francisco apartment building owned and operated by Kraaijvanger. In September 2012, plaintiffs sued Kraaijvanger and a limited liability corporation, Real Equity Group One, LLC (the LLC), for tenant harassment under the San Francisco Administrative Code. Plaintiffs alleged that Kraaijvanger requested detailed personal information about the persons residing in each apartment and installed video cameras about the property to monitor tenants' activities.
Approximately 16 or 17 days after serving Kraaijvanger with the action, plaintiffs were granted an order to preserve evidence (preservation order) that (1) prohibited back-dating of letters to plaintiffs and the destruction of electronic evidence; and (2) required defendants to allow plaintiffs' expert to copy "footage" from the security cameras, including any digital memory. In November 2012, plaintiffs filed an unopposed motion to compel compliance with the preservation order. The court granted the motion in December and imposed monetary sanctions. In January 2013, plaintiffs filed another motion to compel, since defendants had yet to comply with the preservation order. Again there was no opposition. The court granted the motion and imposed terminating sanctions, as well as further monetary sanctions.
In the meantime, plaintiffs obtained entry of a default against defendants. There followed extensive motion practice, in which defendants attempted to have the default set aside. The LLC was successful, since it was not properly served, but Kraaijvanger was not. After a prove-up hearing in December 2013, the court entered a default judgment against Kraaijvanger for damages, sanctions, interest, and attorney fees, premised on the clerk's entry of default (the first default judgment). Kraaijvanger's subsequent motion to set aside the first default judgment was granted. In Fitting I, supra, A140976, we affirmed the trial court's order, concluding the entry of default was due to the neglect of Kraaijvanger's attorney.
At the time the first default judgment was entered against Kraaijvanger, plaintiffs dismissed their claims against the LLC without prejudice, and the LLC has not been involved as a party in subsequent proceedings.
In an order denying plaintiffs' petition for rehearing of Fitting I, we noted that our decision did not address the legal standing of the trial court's order granting terminating sanctions, since plaintiffs "have yet to obtain an order of dismissal or judgment based on the terminating sanctions. The status of the terminating sanctions and whether judgment should be entered pursuant to them are matters for the trial court to resolve [on remand]." Remittitur issued in Fitting I on November 4, 2015.
Plaintiffs wasted no time in acting on the order granting terminating sanctions. On October 21, 2015, even before remittitur issued, plaintiffs filed a motion for entry of judgment on the basis of the terminating sanctions order. On December 30, 2015, the trial court granted the motion, entering a default judgment (2015 judgment) that awarded plaintiffs the same monetary compensation awarded in the first default judgment.
Kraaijvanger filed a motion to vacate the 2015 judgment, primarily on the theory that the award of terminating sanctions resulted from the negligence of his attorney, Karen Uchiyama, the same attorney whose negligence had justified setting aside the first default judgment. The motion was supported by a declaration from Uchiyama, who explained that in September 2012, when this action was filed, she was already representing plaintiffs' landlord, the LLC, in an unlawful detainer action against two tenants, plaintiff Caitlin Fitting and plaintiffs' attorney in this action, Benny Martin. In the course of that representation, Uchiyama had obtained "all relevant documents and recorded [camera] footage" from the LLC. Eight days after Kraaijvanger was served, Uchiyama discussed these materials with Martin and assured him she would turn over all the materials during discovery in the unlawful detainer action. Martin then told Uchiyama he was going to appear ex parte in this action to seek an order preserving evidence. Although Uchiyama offered to stipulate to such an order, Martin said "he would rather get a court order." Because she was "very busy with my law practice at the time," Uchiyama said she would not oppose the ex parte application for a preservation order. When Uchiyama received a copy of the preservation order on October 25, she noticed it authorized examination of the cameras and recordings by plaintiffs' experts. Uchiyama told Martin she would not make these materials available until he followed ordinary discovery procedures, which she did not view as appropriate prior to defendants' filing of a responsive pleading.
Although Uchiyama noted she "did not become Defendants' attorney of record in this action until May 16, 2013," she nonetheless had extensive contact with Martin prior to that time on behalf of defendants. In conversations about the recordings, Uchiyama continued to request that plaintiffs pursue ordinary discovery procedures. In February 2013, Uchiyama began negotiations with Martin's attorney in the unlawful detainer action with respect to the surrender of the recordings. She eventually provided the attorney with a hard drive, apparently containing recordings from the camera, around March 1. In the meantime, on February 13, Martin had obtained the terminating sanctions order.
Uchiyama's declaration incorporated by reference an earlier declaration, filed in connection with the motion to set aside the first default judgment. That declaration stated that Uchiyama never told Martin that she would be representing Kraaijvanger in this action, but he assumed she would do so because she was attorney of record in the unlawful detainer action. When Kraaijvanger was served, he gave Uchiyama a copy of the summons and complaint and discussed them with her. After receiving a copy of plaintiffs' request for entry of default in this action, Uchiyama assumed the defaults would be entered and turned her attention elsewhere, including the unlawful detainer action, apparently because she believed the entry of the defaults precluded her from attending any further hearings.
Plaintiffs opposed the motion to vacate, contending in part that Uchiyama's declaration was not credible. The opposition was supported by a declaration from Martin, which attached extensive electronic and other correspondence with Uchiyama. Contradicting Uchiyama's claim that he merely assumed she was representing defendants, Martin attached a letter dated October 9, 2012, in which Uchiyama demanded on behalf of defendants, whom she characterized as her clients, that the complaint in this matter be withdrawn and threatening to bring an anti-SLAPP (strategic lawsuit against public participation) motion. Regarding the preservation order, Martin said he raised the issue of an ex parte application with Uchiyama prior to filing it. She said she would stipulate to preservation of evidence and told him to send a draft stipulation. Six days prior to the ex parte hearing, Martin sent her a proposed stipulation that was an exact copy of what was later entered as an order by the court. She did not respond. After the order was entered, Martin served it on Uchiyama. Prior to seeking sanctions, Martin twice sent letters demanding defendants' compliance with the preservation order by permitting access by his experts. After the second demand, Uchiyama refused by e-mail, claiming the order merely prohibited destruction of the evidence and refusing to produce evidence in the absence of a written discovery request. Martin then sought a further order requiring compliance and imposing sanctions. Although Uchiyama had been served with a copy of the motion, she did not appear at the hearing or otherwise oppose the motion. The trial court entered an order requiring compliance by December 21, 2012. Five days after this deadline, Martin sent an e-mail to Uchiyama threatening to seek further sanctions unless she provided a date certain for expert access to the cameras. Uchiyama responded that the court lacked jurisdiction over defendants to enter a sanctions order, and said she would move to set aside the preservation order when she moved to set aside the default. Martin thereafter filed and served the second sanctions motion. Again, defendants did not oppose or appear, and terminating sanctions were granted.
The trial court denied Kraaijvanger's motion to vacate in an order entered April 7, 2016. The court reasoned that mandatory relief under Code of Civil Procedure section 473, subdivision (b) was available only from a default judgment resulting from the entry of default by the clerk, not from default judgments generally. While the court concluded discretionary relief was available more broadly, the court denied such relief because Uchiyama stated she was not the attorney of record until May 2013, long after entry of the orders in question. Given these rulings, the court noted, "it is unnecessary to reach the parties' other arguments on this motion." In an addendum to the order, however, the court noted that Uchiyama had made several " 'inexcusable mistakes' " that also justified the court in denying discretionary relief. Although it found such mistakes "too numerous to list here," it specifically cited "her knowing failure to respond to a complaint against her client, her knowing choice to delay seeking to set aside the resulting default, and her knowing choice to skip multiple related court hearings—all based on her 'bad bet' that plaintiffs 'only filed the complaint to get a "global settlement" for money.' " As a result of this conduct, the court noted, "denying relief under [the discretionary provisions of] Section 473b is appropriate here."
All statutory references are to the Code of Civil Procedure.
On May 12, 2016, Kraaijvanger filed a notice purporting to appeal "the Court's entry of default judgment on December 30, 2015, the Court's denial of defendant's motion to vacate the December 30, 2015 default judgment, heard on April 6, 2016, and the Court's default judgment entered on April 7, 2016." A second notice of appeal was filed on May 23, 2016, addressed to "the Court's April 7, 2016 denial of defendant's motion to vacate the December 30, 2015 default judgment, the Court's ruling granting attorney fees on April 7, 2016, and the Court's ruling granting prejudgment interest on April 7, 2016."
Plaintiffs filed a motion to dismiss Kraaijvanger's direct appeal of the 2015 judgment, contending that the May 12 notice of appeal was untimely. In light of our conclusion that the trial court erred in denying his motion to vacate the judgment, the motion is denied as moot. A matter becomes moot if " ' "a court ruling can have no practical effect or cannot provide the parties with effective relief." ' " (People v. Alsafar (2017) 8 Cal.App.5th 880, 886.) There is no dispute that Kraaijvanger's notice of appeal from the order denying his motion to vacate the judgment was timely, and our ruling with respect to that motion effectively requires reversal of the 2015 judgment. Because a ruling on the motion to dismiss could not preserve plaintiffs' judgment, we can provide no effective relief with respect to the motion.
II. DISCUSSION
Kraaijvanger contends the trial court's denial of the motion to vacate the 2015 judgment should be reversed because Kraaijvanger was entitled to mandatory relief or, alternatively, the judgment itself should be reversed because the terminating sanctions order on which it was based was erroneously entered. A. Mandatory Relief Under Section 473
Following this appeal, Kraaijvanger filed a motion to vacate the 2015 judgment as void. The denial of that motion is the subject of a separate appeal, case No. A149788. Because we denied consolidation of the appeals, we do not address the arguments raised in that appeal, involving the failure to serve proper notice of damages. We also offer no opinion whether the result in this appeal renders the voidness appeal moot.
As noted above, the trial court denied mandatory relief under section 473, subdivision (b) on the grounds such relief is unavailable unless the default was entered by the clerk, rather than the court. Because that ruling is a clear error of law, we reverse it. Further, because there is no substantial evidence in the record to support a finding the award of terminating sanctions was not caused by Uchiyama's negligence, we vacate the 2015 judgment ourselves, rather than remand to the trial court for consideration of the issue of negligence.
1. The Availability of Mandatory Relief
The mandatory relief provision of section 473, subdivision (b) states, "the 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 attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client . . . ." As the statute was explained in Martin Potts & Associates, Inc. v. Corsair, LLC (2015) 244 Cal.App.4th 432 (Martin Potts), "section 473, subdivision (b) 'contains two distinct provisions for relief from default' [citation]—one makes relief discretionary with the court; the other makes it mandatory. [Citation.] The two provisions differ in several other respects: (1) the mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals, while discretionary relief is available for a broader array of orders [citations]; (2) the mandatory relief provision is broader in scope insofar as it is available for inexcusable neglect [citation], while discretionary relief is reserved for 'excusable neglect' [citations]; and (3) mandatory relief comes with a price—namely, the duty to pay 'reasonable compensatory legal fees and costs to opposing counsel or parties.' " (Id. at p. 438.)
The purpose of section 473 is evident from its language: " 'It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.' " (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255-256.) That " 'the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits' " are "venerable principles." (Id. at p. 256.) Because the issue determined by the trial court is one of statutory interpretation, we review the court's ruling de novo. (Martin Potts, supra, 244 Cal.App.4th at p. 437.)
As it turns out, the review has already been done for us by Matera v. McLeod (2006) 145 Cal.App.4th 44 (Matera), which, after an exhaustive analysis, rejected the argument that mandatory relief is available only for defaults entered by the clerk and ruled that a default judgment entered pursuant to terminating discovery sanctions is subject to the mandatory provisions of section 473, subdivision (b). Because Matera is directly on point and has not been challenged by any subsequent decision, we follow Matera in reversing the trial court's ruling.
In fairness to the trial court, which plainly gave careful consideration to the motion to vacate, the argument that mandatory relief is available only for defaults entered by the clerk was raised for the first time in plaintiffs' opposition. Kraaijvanger, still represented at that point by Uchiyama, did not file a reply brief. In their argument, plaintiffs did not cite Matera or disclose that, as their appellate brief now acknowledges, "Courts are split as to whether mandatory relief is availability [sic] when a default judgment does not follow a default for failing to answer." The delay and expense of this appeal could have been avoided if plaintiffs' counsel had honored his ethical obligation to cite controlling authority or if Uchiyama had properly served her client's interests by filing a reply brief.
The defendants in Matera were subject to terminating sanctions after they failed to comply with orders compelling discovery. As here, the motion seeking terminating sanctions was unopposed. (Matera, supra, 145 Cal.App.4th at pp. 51-52.) A default judgment was eventually entered on the basis of the sanctions order, but it was vacated under the mandatory provisions of section 473, subdivision (b). (Matera, at p. 53.) On appeal, the plaintiffs contended that mandatory relief was restricted to situations in which the default had been entered by the clerk, rather than the court. (Id. at p. 63.)
In briefly discussing a wide range of prior decisions on the application of mandatory relief, the court concluded all were distinguishable and found no prior decision directly addressing the question at hand. (Matera, supra, 244 Cal.App.4th at pp. 64-66.) Reviewing the legislative history of the mandatory relief provision, the court noted that the clause addressing a "default entered by the clerk . . . which will result in entry of a default judgment," was added by the Legislature to allow the court to vacate the underlying default in addition to the default judgment; the prior version of the statute had provided for the vacation only of the judgment. (Matera, at p. 67.) A prior decision, Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, had already "concluded that there was no legitimate reason to provide for relief from a default entered by the clerk but provide no relief from a default entered by the court, that the Legislature could not have intended that result, and that the likely explanation for the oversight was that the reference to the clerk was intended to distinguish the default from the default judgment." (Matera, at p. 67.) Matera agreed with this aspect of Lorenz and concluded "that the mandatory relief provision provides for relief from a default regardless of whether the default was entered by the clerk or the court." (Matera, at p. 67.)
Plaintiffs offer no legal rationale to suggest Matera was incorrectly decided. While they cite a series of decisions that, they suggest, are contrary to Matera, these are largely the same cases found distinguishable by Matera as addressing different procedural circumstances. While there have been a few subsequent decisions in this general area, all are similarly distinguishable. No case has reconsidered the issue addressed in Matera or suggested it was incorrectly decided. On the contrary, a subsequent decision, Rodriguez v. Brill (2015) 234 Cal.App.4th 715, found that terminating sanctions based on a discovery violation by a plaintiff, resulting in dismissal of the action, can also be remedied under the mandatory provisions of section 473, subdivision (b). (Rodriguez, at p. 725.) While the statutory analysis is a bit different when the judgment was entered as a result of a plaintiff's conduct (ibid.), it would be anomalous to allow mandatory relief to a plaintiff but deny it to a defendant for identical conduct.
Most of these cases address the availability of mandatory relief after a party failed to oppose a summary judgment motion. Because the grant of a summary judgment motion requires a review of the evidence and legal arguments, regardless of whether the motion is opposed, the resulting judgment is distinguishable from a default judgment. (E.g., Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 296-297; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138-149.) Gotschall v. Daley (2002) 96 Cal.App.4th 479, is similarly distinguishable because it involved the dismissal of the plaintiff's case prior to trial for failure to designate an expert witness regarding causation. (Id. at pp. 483-484.)
See Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1090-1091 (mandatory relief not available following a failure to oppose summary judgment; written by the author of Matera, the late Justice Croskey); Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226-229 (same); Huh v. Wang (2007) 158 Cal.App.4th 1406, 1414-1417 (same); Hossain v. Hossain (2007) 157 Cal.App.4th 454, 457-459 (mandatory relief not available for failure to oppose a motion to enforce a settlement agreement); Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321 (mandatory relief not available from entry of judgment on the basis of plaintiff's evidence after defendant failed to appear for trial). Although Vandermoon stated that mandatory relief is available only for a defendant's failure to answer a complaint, the comment is dictum. (Id. at p. 321.)
Although Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, declined to grant mandatory relief from a judgment based on terminating discovery sanctions, it did so on the theory the default was a "strategic decision." (Id. at p. 1060.) The court discussed the availability of mandatory relief from a default not entered by the clerk, but it did not premise its ruling on the issue.
Plaintiffs do attempt to distinguish Matera, but the effort is unsuccessful. First, plaintiffs falsely contend the trial court found that Uchiyama's conduct did not lead to the terminating sanctions. On the contrary, there is no such finding in the court's ruling, and its comments in the addendum regarding the inexcusable nature of Uchiyama's negligence imply that the court did find Uchiyama's conduct to be the cause of the terminating sanctions. Plaintiffs also point out that the trial court, in entering terminating sanctions, did not strike Kraaijvanger's answer, as was the case in Matera. In this case, it was unnecessary for the court to strike the answer because none had been filed at the time the sanctions were awarded. By the time plaintiffs sought entry of judgment on the sanctions, an answer had been filed, and it was struck at plaintiffs' request in granting their motion for entry of judgment. This difference in timing is irrelevant to the reasoning of Matera.
Plaintiffs also contend that the "in proper form" requirement of section 473, subdivision (b) was not satisfied because Kraaijvanger had not complied with the preservation order. At hearing on the motion to vacate, the trial court appeared to accept that sufficient compliance had occurred for purposes of the motion. We have no reason to conclude otherwise.
Because the trial court erred in holding that terminating sanctions cannot be the subject of mandatory relief under section 473, we must reverse its ruling.
2. Uchiyama's Negligence
Ordinarily, when this type of motion is denied on the basis of an error of law, we remand the matter for the trial court to decide, in the first instance, whether the motion was meritorious under a correct understanding of the law. Where an issue of fact may be resolved as a matter of law, however, we have the discretion to decide the issue ourselves. (See, e.g., Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1355; City of Stockton v. Marina Towers LLC (2009) 171 Cal.App.4th 93, 114.) Because the material facts are not disputed here and there is no evidence, substantial or otherwise, to suggest that Uchiyama's negligence was not the cause of the entry of terminating sanctions, Kraaijvanger is entitled to mandatory relief on the present record. In hopes of avoiding yet further delay in the litigation of this case, we grant Kraaijvanger's motion and vacate the judgment.
We have already concluded in Fitting I, supra, A140976, that Uchiyama's negligence caused both the entry of default against Kraaijvanger for failure to respond to the complaint and the award of terminating sanctions. While it was arguably premature for us to address the entry of terminating sanctions in Fitting I, nothing in the present record gives us cause to second-guess that conclusion. On the contrary, the papers submitted in connection with the motion to vacate reinforce it. Martin's declaration and the correspondence attached to it demonstrate beyond dispute that at every step of the way in the litigation of the preservation order, he informed Uchiyama of his intentions, provided her with copies of the orders entered by the court, and gave her an opportunity to comply with the orders. Further, according to her declaration, she was in a position to comply by providing access to camera recordings. Yet Uchiyama refused, claiming for various spurious reasons that Kraaijvanger was not required to comply with the order. There is no evidence in the record to suggest entry of the terminating sanctions was caused by anything other than Uchiyama's conduct. On the contrary, neither declaration provides evidence Kraaijvanger was even aware of the preservation order or the circumstances leading to the award of terminating sanctions.
Uchiyama's comment that she was not attorney of record until much later, cited by the trial court in denying discretionary relief, does not require a different result. An "attorney of record" is an attorney who has filed an appearance on behalf of a party in litigation. (Morgan v. State Bar (1990) 51 Cal.3d 598, 603; see SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517.) A lawyer can, of course, represent a client in proceedings prior to filing a formal appearance. (Bernstein v. State Bar (1990) 50 Cal.3d 221, 231; see Estate of Hultin (1947) 29 Cal.2d 825, 832 ["The words, 'his attorney,' must mean the appellant's attorney, whether he appears as such of record or not."].) There is no requirement that an attorney be serving as attorney of record for a party at the time a default is entered in order to file an affidavit of fault under section 473. (SJP, at p. 517.) On the contrary, as pointed out in SJP, limiting mandatory relief to negligence by an attorney of record "would eviscerate the very purpose of the statute for those clients whose defaults were entered because their attorneys inexcusably failed to timely file an answer or other responsive pleading on their behalf. In such cases, the default would have been taken against the client before the attorney ever appeared before the court or became 'attorney of record' in the matter." (Ibid.) Although Uchiyama might not have appeared in this action until May 2013, the events recited in her declaration make clear she was representing defendants at the time the terminating sanctions order was entered, as we have already ruled in Fitting I, supra, A140976.
Plaintiffs contend Uchiyama meant by her statement that she was not representing Kraaijvanger at all until that time. Because the date claimed by Uchiyama corresponds to the date in which she appeared in this action, we conclude she meant no more than what she said.
The trial court's holding to the contrary was supported by citation to two decisions, Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816 and Cisneros v. Vueve (1995) 37 Cal.App.4th 906, but neither case holds that a negligent attorney must be serving as attorney of record in order to permit relief under section 473. On the contrary, neither case even mentions the term "attorney of record." Rather, both hold that mandatory relief is unavailable if the attorney claiming fault did not represent the party in any manner at the time the default was entered, since under such circumstances the attorney could not have been at fault. (Cisneros, at p. 912; Rogalski, at p. 821, fn. 5.) That was plainly not the case here.
Plaintiffs argue that Uchiyama's declaration contained falsehoods that precluded the court from relying on it, but an attorney's affidavit of fault is not rendered ineffective merely because it contains false statements. Rather, the falsehoods must suggest the attorney's confession of fault is not credible, thereby implying the client, not the attorney, was responsible for the default. (Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 15-16; Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915 [where prior declaration said the attorney had not been retained until after the default was entered, the current declaration claiming to the contrary could be disregarded].) That is not the case here. To the extent Uchiyama's declaration contains demonstrable falsehoods, they appear to be an attempt to minimize her fault. There is nothing in the claimed falsehoods cited by plaintiffs to suggest Uchiyama's culpability is less than she portrayed.
Plaintiffs also contend Uchiyama's declaration is not credible as to her representation of Kraaijvanger at the time the terminating sanctions order was entered, citing a declaration filed earlier in the litigation by Kraaijvanger in which he claimed Uchiyama was not representing him at that time. Because the issue of whether Uchiyama was representing Kraaijvanger for these purposes is one of law, we give little weight to Kraaijvanger's characterization. In any event, we held in Fitting I, supra, A140976, that Uchiyama's relationship with Kraaijvanger at the time was sufficient to satisfy the mandatory relief provisions of section 473, and we are bound by that conclusion under the doctrine of law of the case.
While our conclusion as to the applicability of the mandatory relief provisions of section 473 disposes of this appeal, we note that following plaintiffs' procurement of defendants' default in December 2012, defendants were precluded from making any appearance in the case. At that point, the trial court lost jurisdiction to take any action other than holding a prove-up hearing and entering a default judgment. (See Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶¶ 5:6 to 5:7, pp. 5-2 to 5-3 ["Entry of default deprives the court of jurisdiction to consider any motion other than a motion for relief from default."].) In nevertheless seeking a further discovery order, plaintiffs proceeded as though defendants' default had not been entered, and in doing so, they both sought relief beyond that which the trial court could grant and did so in contravention of defendants' due process rights. (See § 2023.030 [providing for sanctions, including terminating sanctions, after notice and "opportunity for hearing"]; see generally Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-210 [entry of terminating sanctions without notice or on ex parte basis violates due process].) The trial court, in turn, in granting plaintiffs' motion and awarding terminating sanctions, acted beyond the bounds of its postdefault jurisdiction and in contravention of the due process mandates of section 2023.030. (Sole Energy Co., at pp. 207-210.)
3. Remedy
In light of our conclusion with respect to mandatory relief, we vacate the 2015 judgment and that portion of the trial court's February 13 order awarding terminating sanctions. Plaintiffs argue the relief available under section 473 is limited to vacating the 2015 judgment, thereby leaving the terminating sanctions in place. It is not clear why plaintiffs are intent on preserving the terminating sanctions, since, for the reasons explained in this decision, they cannot lead to an enforceable judgment. An award of terminating sanctions that cannot be enforced serves no purpose. For this reason, we conclude the authority to vacate the judgment necessarily includes the authority to vacate the underlying terminating sanctions award. (See Matera, supra, 145 Cal.App.4th at p. 67.)
That does not end the matters associated with the motion to vacate the judgment. Under section 473, subdivision (b), when a party is successful in vacating a judgment under its mandatory provisions, "The court shall . . . direct the attorney [at fault] to pay reasonable compensatory legal fees and costs to opposing counsel or parties." Subdivision (c) of section 473 also permits the court to award certain penalties and "other relief as is appropriate" against either the defaulting party or the attorney. We direct the trial court, on remand, to hold a hearing for the purpose of determining the relief to be assessed under section 473, subdivisions (b) and (c).
Finally, Kraaijvanger contends that the preservation order and the subsequent sanctions orders were erroneous for various reasons. We have now vacated the final judgment embodying those orders. To the extent the orders remain viable and appealable (see § 904.1, subd. (a)(12)), an issue we do not address, appeal must be made from the eventual entry of a final judgment.
The parties made many incidental arguments that we do not directly address in this decision, but we have considered all arguments. Except as expressly discussed herein, we reject every argument. --------
We note that although seven separate docketed appeals have been filed in this case, it has yet to progress past the filing of initial pleadings. It is now time for the parties to put aside procedural maneuvers and get on with litigation of the merits of their dispute.
Because Uchiyama's conduct may have amounted to incompetent representation, we will order that a copy of this opinion be forwarded to the California State Bar for investigation and possible discipline. (Bus. & Prof. Code, § 6086.7, subd. (a)(2).) We ask the State Bar to consider whether Uchiyama's actions in this matter warrant investigation and possible discipline.
III. DISPOSITION
The 2015 judgment and the trial court's award of terminating sanctions are vacated. The matter is remanded to the trial court for further proceedings, including the conduct of a hearing addressing the mandatory compensation and discretionary penalties, if any, to be entered under section 473, subdivisions (b) and (c). The clerk of this court is ordered to forward a copy of this opinion to Uchiyama, as well as to the California State Bar for investigation and possible discipline. Kraaijvanger may recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.