Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC322853, Andria K. Richey, Judge.
Lewis Brisbois Bisgaard & Smith and Roy G. Weatherup for Plaintiff and Appellant.
McCurdy & Leibl, John McCurdy and Christie Beard for Defendants and Respondents.
ZELON, J.
Zakhar Shamilyan’s complaint for medical negligence was dismissed by the trial court. He appeals the court’s denial of his motion to set aside the dismissal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Shamilyan sued J. Patrick Johnson, M.D. and Robert Pashman, M.D., alleging that they committed medical negligence in treating him.
I. Discovery
A. First Written Discovery: Interrogatories and Request for Production
On February 15, 2005, Johnson served on Shamilyan both form and special interrogatories and a demand for the production of documents and things; Pashman served special interrogatories. Responses were due March 22, 2005. Shamilyan’s trial counsel, Barry Fischer, requested and was granted an extension of time to March 31, 2005 within which to serve responses. On March 31, Fischer’s office requested and received an extension to April 4, 2005. The parties conferred about the discovery requests, but no responses were served. Fischer later attributed the delay in responding to the discovery requests to Shamilyan’s injuries. On July 1, 2005, Johnson and Pashman moved to compel responses to the discovery requests.
On July 29, 2005, the trial court heard the unopposed motions to compel. The trial court ordered that Shamilyan serve verified responses, without objections, to the form interrogatories and special interrogatories, on or before August 10, 2005; the court also ordered the production of all responsive documents by that date. Shamilyan was sanctioned $500 for the failure to provide discovery responses, and the trial court issued an order to show cause why sanctions should not be issued against Shamilyan and/or Fischer for failing to comply with the court’s order to file a document stating the date set for a mandatory settlement conference. The court also issued an order to show cause concerning the parties’ imminent and anticipated failure to comply with the court’s order that mediation be completed by August 11, 2005.
As of August 10, 2005, the date that the court ordered the discovery responses and documents be provided, nothing was served. Defendants’ counsel wrote to Fischer on August 16, 2005, requesting the responses and advising that defendants would again move to compel if the responses were not received by August 17. On August 17, a box of documents was delivered to defendants’ counsel. The parties disputed what was in the box. Fischer contended that complete discovery responses were included. Defendants’ counsel, however, telephoned Fischer’s office the day the box was delivered and reported that the box contained only some documents in response to the requests of production, but that there were no responses to the interrogatories. Defendants’ counsel wrote to Fischer the following day, again asserting that no responses to the interrogatories were provided and informing counsel that she would move to compel if the responses were not received by the end of the day. Defendants’ counsel maintained that she did not receive interrogatory responses from Shamilyan until March 2006, when the responses were attached to Fischer’s supplemental declaration in support of Shamilyan’s motion to set aside the dismissal.
On September 6, 2005, defendants’ counsel wrote to Fischer, reminding him that defendants had not received the interrogatory responses or the monetary sanctions ordered by the court. Counsel advised Fischer that unless those items were received by September 7, she would file an additional motion to compel and a motion for terminating sanctions. Defendants’ counsel declared that she did not receive any response; Fischer declared that in response to this letter he sent another copy of the discovery responses to defense counsel by personal delivery.
B. Second Written Discovery: Requests for Admission, Form Interrogatory No. 17.1
On June 27, 2005, both defendants served requests for admissions and Form Interrogatory No. 17.1 on Shamilyan. No responses were received to these requests, and defense counsel wrote to Fischer on August 22, 2005, requesting that the responses be served immediately. Defendants moved on August 26, 2005 for an order deeming the matter specified in the requests for admission true. Fischer did not appear at the hearing on this motion. The court granted the motion and imposed sanctions in the amount of $366.30 against Shamilyan and/or Fischer for failing to respond to the requests for admissions.
Fischer later maintained, in support of the motion to set aside the dismissal, that he “was shocked” to receive this order “because [he] never received a copy of this Motion.” He did not move for reconsideration, and explained that he failed to do so because before he could file his motion, he was served with the ruling on defendants’ later motion for terminating sanctions.
C. Shamilyan’s Failure to Appear for Deposition
Shamilyan’s deposition was first noticed on February 15, 2005, for March 2, 2005. Fischer’s office requested that the deposition be renoticed when all parties had appeared in the action, and it was renoticed on June 28, 2005, for July 26, 2005. Fischer’s office gave notice, telephonically on July 22 and in writing on July 25, 2005, that Fischer would be in trial on July 26th and that the deposition could not take place that day.
By agreement of the parties, the deposition was rescheduled, with notice served on July 27, for August 22, 2005. A representative of Fischer’s office told defense counsel by telephone on August 17 that Fischer was in Europe and would not return until the evening of August 22, so the deposition would have to be rescheduled. Defense counsel reminded Fischer’s office that Fischer had agreed to this deposition date, that the deposition had already been rescheduled more than once, and that they could not agree to another postponement because the mandatory settlement conference and trial dates were approaching. Defense counsel requested that Fischer provide confirmed dates for the deposition prior to August 22, or they would proceed with the August 22 deposition and file a motion to compel if Shamilyan did not appear.
Fischer’s office sent a letter confirming that Shamilyan would not appear on August 22 but offering no new dates for the deposition. Defense counsel requested that the deposition take place on August 23 or 24, by letter and by telephone message, but received no response. Shamilyan did not appear for deposition on August 22.
On August 29, 2005, defendants moved to compel Shamilyan’s deposition. This hearing was held at the same time as the hearing on defendants’ motion to for an order deeming the requests for admission to be admitted. Shamilyan’s counsel did not appear. The court ordered Shamilyan to appear for deposition on September 28, 2005, and also ordered Shamilyan and/or Fischer to pay monetary sanctions of $400 for the failure to appear for the deposition.
On September 27, Fischer’s office notified defense counsel that Shamilyan would not appear for the court-ordered deposition on September 28 because he needed more time. No one from Fischer’s office proposed new dates for the deposition. Shamilyan never appeared for deposition.
II. Motion for Terminating Sanctions
As noted above, on September 6, 2005, defense counsel wrote a letter to Fischer in which she advised him that unless responses were received to the first set of discovery requests and the sanction award paid, she would move for terminating sanctions. Also as discussed above, defense counsel claimed to have received no response to her letter, while Fischer asserted that he sent what he claimed was a second copy of the discovery responses to defense counsel via personal delivery.
On September 12, 2005, defendants filed a motion for monetary, evidentiary, and terminating sanctions. Fischer received this motion but neither filed opposition nor appeared for the hearing. The trial court granted the motion, dismissed the action as to defendants Johnson and Pashman with prejudice, and imposed monetary sanctions in the amount of $1,108.80 against Shamilyan and/or his attorneys of record.
III. Motion to Set Aside Dismissal
On February 17, 2006, Fischer filed a motion requesting that the court set aside the dismissal of the action and reconsider the order deeming admitted the requests for admission. By supporting declaration, Fischer blamed his client for the early failures to respond to discovery. He claimed that the discovery responses had been delivered on August 17, 2005 and that he sent another copy of the discovery responses on September 7, 2005. He asserted that defense counsel had agreed to take the motion to compel off calendar. He claimed that he spoke to defendants’ counsel on September 12, told her that all the discovery had been served, and asked that the terminating sanctions motion be taken off calendar. According to Fischer’s declaration, defendants’ counsel “agreed, and stated that if she did not find the discovery responses, she would notify my office.” Fischer said that when he did not hear from counsel again, he “was unaware” that the motion was on calendar. Two paragraphs later, Fischer blamed his failure to appear at the hearing on computer problems: “Because of my office’s computer problem during the month of September, Plaintiff’s counsel was unaware of the hearing and mistakenly did not appear.”
In opposition to the motion to set aside the dismissal, defense counsel stated that she was out of the office at a court hearing the morning of September 12, 2005, that her office was closed for the afternoon that day due to a power outage, that she did not speak with Fischer on September 12, 2005, and that she had never agreed to take the motion for terminating sanctions off calendar. Defense counsel attached copies of her billing records and calendar to support her statements.
Fischer appeared at the hearing. He claimed it was excusable neglect to fail to file an opposition to the motion for terminating sanctions because he had what he termed “an agreement with counsel that the motion was going[] to be taken off calendar;” and to fail to confirm that the hearing had been taken off calendar. The trial court advised Fischer, “But you do see that I’m not basing my view of your [Code of Civil Procedure section] 473 motion on your failure to be at that hearing. The motion for terminating sanctions was based on past failures so the fact that you have given me this affidavit of mistake doesn’t warrant mandatory relief because I’m not basing that ruling on your failure to show up.” The court continued, “That’s all of the past discovery problems that led to the motion in the first place.”
Fischer then argued that the prior discovery problems were also due to excusable neglect, stating that there was “excusable neglect on my part where I made a mistake. Apparently the discovery was all responded to and somehow it never got to defense counsel. I can’t explain that.” The trial court responded, “I can’t either and the problem is if all of that were true, a deposition would have occurred, which it didn’t. I had to move—they had a motion to compel the deposition which I made an order on that was violated. The prior motions to compel, had you, in fact, produced discovery, they would have gone off calendar; none of them did[]. So we have a whole history here of violations that led to that terminating sanction motion and I don’t think the law requires us to go back to each separate motion and find mistakes as to each, particularly when no motion to reconsider was timely brought as to any of these other rulings[.] So that’s really the basis of the court’s decision if that helps you understand why I’m ruling the way I am. And I do feel sorry for your client but your client has a different remedy so I’m going to ask defense to give notice, please.”
In a written order, the court ruled, “Motion for reconsideration of order granting motion to deem requests admitted is untimely and denied. Motion to vacate dismissal based on motion for terminating sanctions is similarly flawed. Indeed, as to motion for terminating sanctions, no motion for reconsideration was filed there either, despite counsel’s receipt of the court’s ruling in October of last year. The ruling granting the motion for terminating sanctions was not based simply on counsel’s failure to appear, or his failure to oppose that motion, but was based on the violation of court orders to produce basic discovery. Thus, counsel’s alleged mistake in not attending that hearing (or in not filing opposition) was not the cause of the entry of the order terminating the case, and thus mandatory [Code of Civil Procedure section] 473 relief is not warranted here. In any event, it appears from the documents before the court that plaintiff’s counsel did not in fact obtain any agreement that the motion for terminating sanctions would go off calendar, and thus no mistake was made even on this issue. Since no reply has been filed, the Court assumes the opposition papers are true, and that plaintiff’s counsel simply chose not to attend the hearing. Discretionary relief is also not warranted here, given the consistent delays and failures to comply with court orders. Counsel has not shown excusable neglect or reasonable mistake to warrant discretionary relief from the dismissal which resulted from the court’s granting of the motion to terminate.”
Fischer claims this sentence is in error because he submitted a supplemental declaration with exhibits after the opposition to the motion to set aside was filed, and the court indicated at the hearing that it had read that declaration. A supplemental declaration and a reply brief are not equivalent, so the trial court did not err. Moreover, the supplemental declaration did not contest the evidence given in support of the defendants’ opposition to the motion to set aside the dismissal, but instead consisted of proposed oppositions to the already-heard and unopposed motion for terminating sanctions, the already-heard and unopposed motion to deem requests for admissions admitted, and the already-heard and unopposed motion to compel responses to the requests for production, special interrogatories, and form interrogatories. In any event, we disagree with Shamilyan’s claim that this is “[t]he key portion of the minute order,” as the court’s ruling clearly stated that the dismissal was not based on counsel’s failure to attend the hearing on the motion for terminating sanctions.
Shamilyan appeals.
DISCUSSION
On appeal, Shamilyan contends that he was entitled under the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b) to have the dismissal vacated because he was personally blameless and the dismissal resulted from his attorney’s fault. “Under the mandatory relief provision [of section 473] . . ., upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.) Applications seeking relief under the mandatory provision of section 473 must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)
Here, Fischer attempted to assert attorney fault with respect to his failure to oppose and appear at the hearing on the motion for terminating sanctions. Had the court based its dismissal on counsel’s failure to appear and oppose the motion, the declaration would have been sufficient to establish attorney fault, entitling Shamilyan to have the dismissal set aside. But as the court explicitly stated, the basis for the terminating sanctions was Shamilyan’s continual failure to honor his discovery obligations. Shamilyan claims that this finding is not supported by substantial evidence, but abundant evidence supports the trial court’s decision. Shamilyan failed to respond to written discovery requests in a timely manner. He failed to appear at deposition, even when ordered to do so by the court. He failed to deliver discovery responses in the time frame ordered by the court. He was sanctioned multiple times for failure to fulfill discovery obligations. The evidence supports the trial court’s conclusion that the “dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)
On appeal, Shamilyan claims that these failures were his attorney’s and not his own, but Fischer’s declaration did not establish attorney fault with respect to these matters—he blamed others for them and denied personal error. In his declaration, Fischer first held his client responsible for the discovery delays. According to Fischer, the written discovery was not delivered by April 4, 2005 because “Plaintiff was unable to meet with me.” Discovery was not completed over the next few months because with “Plaintiff’s injuries he needed more time.” In June 2005, Fischer “told defendant’s counsel that plaintiff is having difficulty completing the discovery because of plaintiff’s disabilities . . . .” Fischer also blamed opposing counsel for proceeding with hearings on two motions after agreeing to take them off calendar. Fischer also claimed that he had twice served the written discovery responses in August and September 2005; the trial court clearly did not believe that assertion, a credibility determination that was well within the trial court’s discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) Nowhere in the declaration did Fischer assert that his own error, inadvertence, or neglect was the cause of plaintiff’s repeated discovery nonperformance. Fischer’s declaration simply did not make the evidentiary showing of attorney mistake, inadvertence, surprise, or neglect required to entitle Shamilyan to relief from the dismissal entered by the trial court.
Shamilyan cites authority and makes arguments concerning instances in which dismissals result from a combination of attorney error and other factors, arguing that “a litigant in the position of plaintiff Zakhar Shamilyan is entitled to mandatory relief from the dismissal of his case, as long as the fault of his attorney was at least one substantial factor leading up to the dismissal.” Here, however, Shamilyan did not establish that his attorney’s mistake, inadvertence, surprise, or neglect was in fact one of multiple causes of the dismissal. Shamilyan argues that the fact that the court used the word “simply” in its minute order, stating, “The ruling granting the motion for terminating sanctions was not based simply on counsel’s failure to appear at that hearing, or his failure to oppose the motion, but was based on the violation of court orders to produce basic discovery,” implies that the order of dismissal was based on multiple factors, but that analysis is belied by the court’s clear declaration in the remainder of the quoted sentence that the dismissal “was based on the violation of court orders to produce basic discovery.” There was no evidentiary showing that the repeated failure to honor the basic obligations of the discovery process was the product of Fischer’s mistake, inadvertence, surprise, or neglect.
We share the trial court’s expressed sympathy for Shamilyan’s plight, but as the trial court also noted, Shamilyan has another remedy. The mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), are not an all-purpose escape hatch. (Generale Bank Nederland v. Eyes of the Beholder, Ltd. (1998) 61 Cal.App.4th 1384, 1396-1397.) As Shamilyan has not established any error in the trial court’s ruling, we affirm.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.