Opinion
NOT TO BE PUBLISHED
Superior Court County No. 56-2009-00341702-CU-PA-VTA, of Ventura, Frederick Bysshe, Judge.
Peyman & Rahnama, Pejman Rahnama; Diane B. Weissburg for Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Respondent.
PERREN, J.
Bella Gardenias appeals an order denying her motion to vacate an order under Code of Civil Procedure section 473 granting respondent Lori Candreva's motion to enforce a section 998 settlement offer. We affirm.
All statutory references are to the Code of Civil Procedure.
Facts and Procedural History
Gardenias was injured on February 19, 2008, when her car was struck by one driven by Candreva. Gardenias filed a complaint for damages for personal injury on April 6, 2009. Discovery was initiated and an arbitration hearing was scheduled for January 20, 2010.
On October 30, 2009, Gardenias' attorney, Pejman Rahnama, served by regular mail a statutory offer of settlement pursuant to section 998, on Candreva's attorney, offering to settle the case for $15,000 and a mutual release of all claims. Paul Orszag, an attorney in the firm representing Candreva, contacted Gardenias' attorney and spoke to Rahnama's partner, Ramin Peyman, orally accepting the offer. The same day, Orszag sent a written acceptance of the offer by facsimile and first class mail to Peyman. After the offer was accepted, Peyman attempted to withdraw the offer. Candreva filed a motion to enforce the section 998 settlement.
The trial court granted the motion on January 26, 2010, ordering Gardenias to execute a release pursuant to her offer of compromise and dismissing her complaint with prejudice. Gardenias filed a notice of appeal from the order on April 2, 2010.
In a separate opinion, we concluded that the offer and acceptance complied with section 998 and denied the appeal. (B223556.)
On February 11, 2010, Gardenias filed a notice of motion to vacate and relieve plaintiff of the order enforcing settlement under section 473. Gardenias argued that she should be granted relief under section 473, subdivision (b), because of her attorney's mistake, inadvertence, surprise or neglect, and that the offer was void because it was not authorized by her. The motion was accompanied by points and authorities and the declarations of Rahnama, Peyman and Youngman. No declaration from Gardenias was submitted.
Rahnama's declaration stated that he was injured in an automobile accident in November 2008, and has a painful lower back condition; his firm's finances were "severely compromised" and he had to terminate employees; paralegal Youngman reviewed Gardenias' file and in reliance on his recommendation, Rahnama prepared the section 998 offer; because he was overworked, Youngman failed to read all the medical reports in the file, including a report indicating that Gardenias should have knee surgery estimated at costing $10,000; and Youngman reported to Rahnama that his attempts to reach Gardenias concerning the settlement were unsuccessful.
Youngman's declaration added that, although he informed Rahnama that he was unsuccessful in contacting Gardenias, Rahnama instructed him to prepare and serve the offer of compromise. Youngman's declaration also stated that on December 1, 2009, he responded to a voicemail message left by Gardenias. She told him that $15,000 was insufficient to compensate her for her injuries. She instructed Youngman to do whatever was necessary to assure that she was not bound by the unauthorized offer of settlement.
The letter Peyman sent to counsel on December 2, 2009, following his purported conversation with Gardenias did not state that Gardenias had not authorized the settlement. Instead, the letter stated that Gardenias was "withdraw[ing]" her offer to compromise because of a previous demand for an independent medical examination.
Peyman's declaration states that he told Orszag in the November 30 telephone call that "settlement of this matter would be contingent upon someone from his office discussing the subject of his phone call with Mr. Rahnama, who was the handling attorney...." Peyman also stated that he "not only did not acknowledge or ratify Mr. Orszag's purported 'acceptance' but unqualifiedly state that [he] did not agree that there was '... no need for (them) to serve a formal response to (the)... offer... as is alleged in Mr. Orszag's November 30, 2009 letter....'" Peyman also stated he did not see the letter of acceptance and was not informed of it. Youngman told him only that he had been able to speak to Gardenias on December 1 and she instructed him to revoke the offer. Gardenias did not submit a declaration.
Candreva opposed the motion raising numerous legal arguments and evidentiary objections. Gardenias filed a reply brief arguing she was entitled to mandatory relief under section 473, subdivision (b). On March 18, 2009, the trial court denied the motion. An order was entered on April 8, 2010. Gardenias filed a notice of appeal from the April 8 order on May 25, 2010.
On March 22, 2010, Gardenias filed a second motion to vacate requesting discretionary relief under section 473, subdivision (b). The declarations of Rahnama, Youngman, and Peyman accompanied the motion and were substantially similar to those submitted with the first motion. Again, no declaration by Gardenias stating she had not authorized the settlement was submitted. On April 26, 2010, the court ruled that it had no jurisdiction in the matter as an appeal had been filed and stayed the matter until the appeal was decided.
DISCUSSION
Standard of Review
We review a trial court's determination on a section 473 motion for abuse of discretion. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)
Statutory Framework
Section 473 contains both mandatory and discretionary forms of relief.
The mandatory relief provision of section 473, subdivision (b) provides: "Notwithstanding any other requirements of this section, 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, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (Huens v. Tatum (1997) 52 Cal.App.4th 259, 262.)
The Trial Court Did Not Err in Denying Mandatory Relief Under Section 473
Gardenias asserts the court erred in denying her relief under the mandatory relief provision of section 473, subdivision (b) because her attorneys filed declarations stating that (1) Gardenias had not authorized the settlement, (2) they failed to properly and adequately supervise the activities of their paralegal, and (3) they failed to communicate with one another concerning the details of her case.The short answer to this is contained in Huens v. Tatum, supra, 52 Cal.App.4th at page 265: "[T]he mandatory 'attorney affidavit' provisions of section 473 cannot be used to set aside a voluntary dismissal executed pursuant to a settlement." (See also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672 ["If courts could set aside compromise agreements on the grounds of mistake, section 998 judgments would spawn separate, time-consuming litigation. It bears repeating: Section 473, subdivision (b), was not intended to permit attorneys 'to escape the consequences of their professional shortcomings' [citation] or to insulate them from malpractice claims"]; accord, Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967-968; Gotschall v. Daley (2002)96 Cal.App.4th 479, 483-484.)
Gardenias' argument that she is entitled to relief because she did not authorize the settlement agreement might have some merit (see, e.g., Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 260 ["'An attorney does not, without specific authorization, possess the power or authority to bind his client to a compromise settlement of pending litigation'"], but such relief cannot be granted on this record which does not contain her declaration but only the hearsay statements of her attorneys and a paralegal that she did not authorize the settlement. If this assertion has merit, Gardenias may bring a motion under section 473, subdivision (d), supported by her declaration of unauthorized conduct by her attorneys, to void the section 998 dismissal. "'Because counsel's dismissal stipulation was wholly unauthorized and was made without the knowledge or consent of his clients, it could not form the basis of a valid judgment.' [Citation.] An attorney's unauthorized disposition of clients' substantive rights is invalid and a judgment based thereon is therefore void." (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1236.)
The order is affirmed. Respondent shall recover costs on appeal.
We concur: GILBERT, P.J., YEGAN, J.