Opinion
B161399.
7-31-2003
COLUMBUS ANTIQUES & DECORATIVE CENTER, INC., ET AL., Plaintiffs and Appellants, v. WASTE MANAGEMENT, INC., Defendant and Respondent.
DiJulio & Associates, A Law Corporation, R. David DiJulio and Michael M. Bergfeld, for Plaintiffs and Appellants. Lewis, Brisbois, Bisgaard & Smith, LLP, Keith D. Taylor, Norine M. Busser and Thomas W. Tuttle, for Defendant and Respondent.
In this appeal, plaintiffs challenge the trial courts denial of a Code of Civil Procedure section 473, subdivision (b), "attorney fault" motion to set aside a dismissal of this suit. The suit was dismissed pursuant to the defendants motion for terminating sanctions, which defendant based on the discretionary relief provisions in the discovery statutes. In granting defendants motion and dismissing the suit, the trial court found plaintiffs had repeatedly failed to make discovery of various types, and previous discovery orders had not been effective in providing defendant with necessary discovery. Moreover, the court found plaintiffs had failed to make court appearances. Dismissal of the suit occurred 12 days before the date set for trial.
Code of Civil Procedure section 473, subdivision (b), ("§ 473") states in relevant part: "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 attorneys 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 attorneys mistake, inadvertence, surprise, or neglect." (Italics added.) This portion of section 473 is often referred to as the "attorney fault" and the "mandatory relief" provisions of the statute.
In deciding plaintiffs section 473 motion, the trial court cited two bases for denying their motion to set aside the dismissal. The court ruled that under Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 (Leader), section 473s attorney fault provisions are not applicable here because plaintiffs cannot demonstrate that their attorney failed to oppose the motion to dismiss the case. As an alternative reason for denying plaintiffs motion, the court stated its disbelief of alleged facts submitted in a declaration to support the section 473 motion.
Our examination of the record confirms the trial courts ruling that under Leader, section 473 is not applicable here. Moreover, even if plaintiffs could demonstrate that their attorney failed to represent them with respect to the motion for terminating sanctions, their attorneys declaratory explanations as to why responses to discovery were not presented to defendant are inadequate as a matter of law to support opposition to defendants motion to dismiss, and the trial court has already determined that a declaration submitted by one of the plaintiffs lacks credibility, and the plaintiffs are not innocent in the matter of their failure to make discovery and appearances. Therefore, there would be no point in sending this case back to the trial court for a hearing on the motion to dismiss even if we were to conclude that Leader did not preclude section 473 relief here.
For these reasons, the order denying the section 473 motion will be affirmed.
BACKGROUND OF THE CASE
This suit was filed on March 7, 2001, and an amended complaint was filed in July of that same year. Plaintiffs are Columbus Antiques & Decorative Arts Center, Inc., Patrick Williams, and Laura Williams. Defendant is Waste Management Inc.
The operative complaint alleges that plaintiffs hired the defendant to remove waste material from residential property plaintiffs purchased, and while performing the contract, defendant damaged the septic field on the property, and thereby (1) breached the contract it had with plaintiffs, (2) caused physical damage to the property and economic damage to the plaintiffs who intended to use the property for production of income, and (3) left a dangerous condition to the property which caused one of the plaintiffs to fall and injure herself.
Trial in the case was set for April 17, 2002. On February 21, 2002, defendant filed a motion for terminating sanctions, and monetary sanctions. The motion alleged plaintiffs: (1) twice, in 2001, promised responses to outstanding discovery that defendant had served on plaintiffs in May 2001 (consisting of form interrogatories, special interrogatories, and a request for production of documents), but then never produced the responses; (2) failed to comply with a January 18, 2002 meet and confer order on such outstanding discovery; (3) failed to comply with a January 30, 2002 court order that directed them to serve responses to the discovery; (4) failed to pay sanctions of $ 979 ordered by the court; (5) failed to appear for a "person most knowledgeable" deposition on February 11, 2002; (6) caused the court-ordered mediation of this case to not go forward; and (7) failed to appear for a February 14, 2002 post-mediation status conference.
According to the courts April 5, 2002 minute order on the motion for terminating sanctions, plaintiffs did not file opposition to a motion to compel responses to discovery, nor did they appear at the hearing on the motion to compel.
According to defendants moving papers for its motion for terminating sanctions, defendant had made an earlier motion to compel discovery responses and set it for November 13, 2001, but that motion was taken off calendar when the court stayed proceedings in the case, for 90 days, in October 2001. The stay was occasioned by an order of liquidation of defendants insurer. When plaintiffs did not serve responses to the outstanding discovery within that 90-day stay, defendant filed its second motion to compel discovery responses. That motion was the one heard and granted on January 30, 2002. (There was also an earlier stay in the case. It lasted 20 days in July 2001, and was also due to the insurers financial difficulties.)
Defendants motion for terminating and monetary sanctions was heard on April 5, 2002. Also scheduled for that day was the courts order to show cause for plaintiffs failure to appear at the mediation, violation of the courts discovery order, failure to appear at the deposition, and failure to appear at the post-mediation status conference. Plaintiffs did not file opposition to defendants motion prior to the hearing, however an attorney by the name of Stanley Landes appeared on behalf of the attorney who was handling the case for plaintiffs-Janis Turner. Mr. Landes was not a member of Ms. Turners law firm and he stated he had not been "associated in this case in any way."
Mr. Landes brought with him a declaration from Ms. Turner and he argued against defendants motion to dismiss. The factual basis of the argument against dismissal, which Landes presented on behalf of attorney Turner, was that one of the partners in Turners law firm had experienced serious illness leading to the partners incapacity, and this in turn resulted in "serious problems with the firm and everything is falling on her desk, and that led to issues in this case." Landes said that "the catastrophic illness of [Turners] partner has led to what [Turner] believes is exigent circumstances in this case." Mr. Landes added that Ms. Turner was willing to pay the sanctions that the court ordered, and she had gathered the documents defendant requested for production and was prepared to deliver them to defendants attorney forthwith.
Plaintiffs have not included this declaration in the appellate record.
In its minute order for the hearing on defendants motion for terminating sanctions, the court observed that the discovery statutes and relevant case law provide authority for such sanctions after the court has issued an order compelling discovery responses and the party ordered to serve and file such responses has willfully failed to do so and has had an opportunity to be heard. The minute order states that (1) plaintiffs had not made an effort to demonstrate that they could not comply with the order compelling responses, (2) defendants discovery seeks information material to defendants preparation of a defense to the suit, (3) the discovery does not seek information or documents difficult to obtain, and (4) without the discovery responses, the defendant would be severely prejudiced in trying the case. The court also mentioned plaintiffs failure to pay previously ordered sanctions, appear at a deposition, appear at a mediation, and appear at a post-mediation status conference. The court stated that sanctions less than termination would be both inappropriate (given plaintiffs derelictions), but also futile since lesser sanctions had not produced discovery responses. Moreover, said the court, giving plaintiffs more time to provide responses would be inappropriate given that trial was just 12 days away.
The court granted terminating sanctions and dismissed the suit. Seventeen days later, plaintiff moved to set the dismissal aside, citing the attorney fault provisions in section 473 as grounds for their motion. Then, approximately two months later, plaintiffs filed another set of points and authorities to support their section 473 motion. This second set was filed by a different law firm than the one that had represented plaintiffs up through the filing of the first section 473 motion papers. The "new" firm had not yet been substituted in as counsel of record when the papers were filed; nor was it substituted in as counsel of record when it appeared at the hearing on plaintiffs section 473 motion.
The trial court denied plaintiffs request to have the dismissal vacated, finding that the procedural posture of this case did not come within the design of section 473s attorney fault provisions for relieving a plaintiff from a dismissal because such provisions are directed to those situations that are the equivalent of a defendants default; that is, the provisions are meant for those cases where the plaintiffs attorney does not appear and contest the requested for a dismissal. Here, said the court, Mr. Landes did appear at the hearing on defendants motion for terminating sanctions and he argued in opposition to the motion on behalf of plaintiffs. The court further found that plaintiffs moving papers did not provide evidentiary support for the motion.
CONTENTIONS ON APPEAL
Plaintiffs contend the trial court erred in its finding that their attorney opposed the motion for terminating sanctions. Plaintiffs contend such opposition was confined to their attorney having sent a "warm body" to the hearing on the dismissal motion and this does not constitute opposition as a matter of law. Plaintiffs further contend the court erred by focusing on whether they were innocent of wrongdoing rather than on the failings of their attorney.
DISCUSSION
1. Section 473 Attorney Fault Provisions Apply to Dismissals That Are the
Procedural Equivalent of a Default
When the Legislature added language to section 473 to permit the attorney fault provisions in that section to be applied to benefit plaintiffs who have had their cases dismissed, the intent was to put such plaintiffs on an equal footing with defendants who had their defaults taken because their attorney failed to file an answer or otherwise make an appearance in the case for the defendant. Thus, the Legislature sought to address dismissals that are the procedural equivalent of a default, that is, dismissals which are the result of a plaintiffs failure to oppose a motion to dismiss, when such failure is the fault of the plaintiffs attorney. It is not sufficient for the plaintiffs attorney to simply declare in an affidavit or declaration that the dismissal resulted from some failing of the attorney. It is the failure to oppose the dismissal motion that results in section 473 mandatory relief to the plaintiff (Leader, supra, 89 Cal.App.4th at pp. 617-619.) The addition to section 473 of provisions for relief from dismissals " "was [not] intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in a dismissal." [Citation.] [Citation.]" (Id . at p. 618.)
Plaintiffs characterization of this analysis in Leader as "dicta" is erroneous.
Moreover, if a plaintiffs opposition to a motion to dismiss does not result in defeat of the motion because the opposition is insufficient on the merits, that also does not equate with a failure to oppose the motion. Such situations are not the equivalent of defaults but rather are simply motions that are lost after they are opposed on the merits. (Leader, supra, 89 Cal.App.4th at p. 621.) The "day in court" which section 473 seeks to provide is not a guarantee of a trial on the merits of the suit, but rather an opportunity to appear, present evidence, and argue in opposition to the motion to dismiss. (Ibid.)
In the instant case, plaintiffs argue that when their attorney, Ms. Turner, sent Mr. Landes to argue in opposition to defendants motion for terminating sanctions, plaintiffs only received a "warm body" defense to the motion, not the representation envisioned by the court in Leader. They argue Ms. Turner had not even bothered to submit written opposition.
Whether this "stand-in attorney/no written opposition" argument might apply in other cases to require a court to provide section 473 attorney fault relief to a dismissed plaintiff is not a question we need decide here because the reporters transcript for the hearing on the motion for terminating sanctions shows that the excuse presented by Ms. Turner via Mr. Landes for why plaintiffs failed to make discovery, pay the sanctions, and make appearances is the same excuse that Ms. Turner set forth in the declaration which she filed in support of plaintiffs initial moving papers to set aside the dismissal, to wit, that her law firm was having difficulty dealing with the additional work occasioned by the sickness of one of its partners and this additional burden "led to issues in this case." Given that the two presentations from Ms. Turner were the same, it is obvious to us that even if she had filed opposition to motion for terminating sanctions, and even if she had made the appearance herself at the hearing on such motion, the result would have been the same-the motion would have been granted because of the laundry list of reasons stated by the trial court for imposing the terminating sanctions. The Leader court specifically stated that an opposition to a motion to dismiss that is inadequate on its merits does not result in mandatory relief under section 473. (Leader, supra, 89 Cal.App.4th at p. 621.)
Having failed to demonstrate that the dismissal of their case was the procedural equivalent of a default taken against a defendant, plaintiffs motion for section 473 attorney fault relief from such dismissal was properly denied.
The trial court stated an independent reason for denying plaintiffs section 473 motion. The court found that portions of plaintiff Patrick Williamss declaration, filed in support of that motion, were not credible to support his claim that plaintiffs were ignorant and innocent of the problems with how his case was proceeding. Such a finding is relevant to the provision in the attorney fault portion of section 473 which says that relief from a dismissal will not be granted by a court if the court determines that the dismissal was not in fact caused by the plaintiff attorneys mistake, inadvertence, surprise, or neglect. Deciding the credibility of a declaration is within the parameters of a trial judges duties. The judge is not required to believe the assertions made in a declaration even when there is no evidence that contradicts such assertions. (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal. App. 3d 1012, 1017, fn. 7, 112 Cal. Rptr. 71.)
2. Even If Their Attorneys Representation of Them for Defendants Motion for Terminating Sanctions Was Procedurally Equivalent to a Default, Plaintiffs Section 473 Papers Demonstrate They Would Not Prevail on Defendants Motion to Dismiss If This Case Were Returned to the Trial Court for a Hearing on that Motion
a. Introduction
If a plaintiff moving for section 473 relief under the attorney fault provisions of that statute demonstrates that the dismissal of its case was the procedural equivalent of a default, a vacation of the dismissal is ordinarily warranted, and the next procedural step would ordinarily be to permit the plaintiff to present opposition to the defendants motion to dismiss and have the trial court decide the dismissal motion on the basis of the moving and opposing papers.
However, in the instant case, when plaintiffs moved for section 473 attorney fault relief to have the dismissal vacated, they, in effect, simultaneously laid out their case for why defendants motion to dismiss should be denied if it were remanded for a hearing on the motion to dismiss. Our examination of plaintiffs presentation reveals that they did not make a sufficient showing to warrant denying dismissal of their case on failure to make discovery grounds. Therefore, even assuming arguendo that the dismissal of their case was the procedural equivalent of taking a defendants default, and relief were otherwise warranted under Leader, plaintiffs have already demonstrated that there is no point in sending this case back to the trial court for its redetermination of whether the case should be dismissed.
b. Plaintiffs Defense to Defendants Request for Dismissal Is Not Supported by Their Proffered Evidence
(1) Plaintiffs Initial Section 473 Motion Papers
Plaintiffs moving papers to set aside the dismissal bear the name of the law firm of Turner & Dougherty. Attorney Janis Turner signed the moving papers and she submitted a declaration in support of the motion. Her declaration is amazingly devoid of any dates whatsoever. In it, Turner stated that this case was "originally started by [her] former partner Arthur H. Lampel," but he became seriously emotionally ill and ultimately the illness caused him to leave the practice of law. Ms. Turner goes on to state that because she did not become fully aware of the state of his illness, she inherited several cases that were in "a state of crisis," and the instant case was one of them. She states she "forwarded the Discovery to [plaintiff Patrick] Williams and he duly answered them [sic]." Then, she gave the answers to a staff person whom she failed to supervise closely, and she "believed that the papers had been completed and sent out." She goes on to state that it was only when she "thoroughly investigated," that she found out "that the Discovery had not in fact been answered nor had the Sanctions been paid." She states she should have investigated "far earlier." She asserts: "The error was mine in that I did not follow up and I relied far more than I should have done. The fault is not Mr. Williams [sic] and he does not deserve to have my error imputed to him."
The original and amended complaint were prepared by the law firm of Turner, Lampel & Dougherty, with attorney Janis Turners signature on those two complaints.
Turner also stated in this initial declaration that her former partners illness "increased the work" and caused the law firm to lose income, and this loss was complicated by the fact that the firm had "several cases which were covered by Reliance Insurance [and] because this is a small firm the combined loss of income was far more devastating to us than it might have been to others." (Apparently Reliance Insurance had financial difficulties.)
Clearly this declaration from Turner would not effectively support an opposition by plaintiffs to defendants motion to dismiss. While she asserts the plaintiffs case was "in a state of crisis," she does not explain how this crisis impacted on plaintiffs promptly carrying out their discovery duties. She states that she sent the discovery requests to plaintiff Patrick Williams and he "duly answered" the discovery, but she does not say when she sent it nor when he answered it. And she states that after receiving his answers, she failed to discover that the discovery had not been answered and the sanctions had not been paid. Did she mean to say that the answers had not been served? Does she mean that the staff person was to pay the sanctions?
Moreover, Ms. Turners declaration fails to address defendants two motions to compel discovery responses that defendant filed in between the time it propounded discovery and the time the trial court dismissed this case. Did those motions fail to provide any clue to Turner that discovery responses had not been served? Additionally, as the court pointed out, Turners declaration did not even address the fact that plaintiffs failed to attend court hearings, mediation, and the "person most knowledgeable" deposition.
Clearly, the papers filed by Turner on behalf of plaintiffs were not sufficient to permit a court, in its discretion, to deny defendants motion to dismiss this case for failure to make discovery.
(2) Plaintiffs Second Set of Section 473 Papers
The courts July 9, 2002 minute order for the hearing on plaintiffs request for relief from the dismissal of their case states that their attorney of record, Ms. Turner, filed a motion for such relief on April 22, 2002, and then, without plaintiffs first filing a substitution of attorney, and without Ms. Turner first obtaining an order from the court relieving her as attorney of record for plaintiffs, another law firm filed additional papers in support of plaintiffs request for relief from the dismissal. This second set of papers was filed by the law firm of DiJulio & King, on June 18, 2002, and it states that the firm was "specially appearing" for plaintiffs. Both Ms. Turner and Mr. DiJulio appeared at the hearing on plaintiffs motion for section 473 relief.
Although the appellate record contains only the declarations and the points and authorities filed by DiJulio and King, and not an actual notice of motion for relief from dismissal, the courts minute order states that this second law firm filed "another motion for relief."
At that hearing, the trial court observed that it could only "legally" hear from Ms. Turner on plaintiffs request for relief since she had not been relieved as counsel of record for plaintiffs, either by plaintiffs signing a substitution of attorney or by Turner having a motion to be relieved as counsel of record granted. Nevertheless, the court did permit attorney DiJulio to argue the substantive merits of the papers he filed on behalf of plaintiffs "in the interest of efficiency" so that in case Ms. Turner was eventually not plaintiffs attorney of record, court and counsel would not be back in court again on the same motion "because there is overlap in Ms. Turners motion and [DiJulios]." In its minute order, the court stated it was denying the motions on substantive grounds and on the DiJulio law firms lack of standing.
DiJulio & King submitted a declaration from Ms. Turner with their trial court papers. In the declaration, Turner again asserted that there were problems in her law firm caused by the partners illness, the work load, and the financial problems of the firm, but once again, she did not connect these matters to the discovery issues. Turner also stated that the two stays in this case (see fn. 2, ante), "caused a great deal of confusion" in her law office and "we did not respond to discovery and attend some of the hearings because we believed the stay was in place." (Italics added.)
We cannot avoid contrasting this italicized assertion by Turner with (1) her assertion in her earlier declaration that the discovery responses were not forthcoming because she gave the plaintiffs discovery responses to a staff person whom she failed to supervise closely, and she "believed that the papers had been completed and sent out," and (2) her assertion in this second declaration that in June 2001, plaintiffs sent to her office draft responses to defendants interrogatories and request for production but the responses were not "finalized, verified, or served on Defendant" because the plaintiffs file was neglected and copies of the discovery "were not put into the file." These various excuses leave one wondering what the real reason was for plaintiffs not having served responses to defendants discovery requests. The remainder of Turners second declaration is devoted to listing the various things her office should have done on behalf of plaintiffs but did not do, and her asserting that plaintiffs did not know that such matters were not being taken care of by plaintiffs firm, such as opposing motions to compel, and attending hearings and mediation. We observe that she did not make such an assertion in her first declaration.
A declaration from plaintiff Patrick Williams was also filed with the DiJulio & King papers. In it, Mr. Williams set out various things about the ongoing procedural posture of this case that he said Ms. Turner should have told him but did not, such as there not being responses to discovery served on defendants, appearances made on plaintiffs behalf at hearings, and opposition filed to defendants motions. He stated that he corresponded with Turner on a regular basis, and was always told "things were going smoothly" and "everything that needed to be done was being done." He stated that although he was aware that a trial was set for April 17, 2002, Ms. Turner told him that the trial would be continued because the trial judge was going to retire, and only when he spoke with a court clerk did he find out that the case had been dismissed. Williams stated he asked attorney DiJulio to review the draft discovery he prepared in June 2001 so that the responses could be finalized and verified, he arranged for DiJulio to pay the court ordered discovery sanctions, and he agreed to produce the person most knowledgeable for deposition.
At the hearing on the motions, the court asked Ms. Turner if she had told Mr. Williams that the trial judge was retiring, and Turner replied that she had not made such a representation to Williams. The court indicated it did not find the plaintiffs as innocent as Mr. DiJulio thought them to be. The court further indicated that it found Mr. Williamss declaration to be incredible. The court noted Williamss representation that Turner told him the trial judge was retiring, and questioned his representation that between submitting draft responses to discovery and knowing that a trial had been scheduled to commence soon, he apparently did not wonder if anything had happened.
In Lang v. Hochman (2000) 77 Cal.App.4th 1225, we held that if a party has contributed to a default or dismissal entered against it, such party is not entitled to the mandatory relief provided in section 473. We held that a party is entitled to mandatory relief only if the partys attorneys acts or omissions are the sole cause of the default or dismissal. (Id. at p. 1248.) We quoted from Huens v. Tatum (1997) 52 Cal.App.4th 259, 263, a case that noted that the purpose of the attorney fault provisions is to relieve innocent parties of the burdens of their attorneys fault, parties who have done nothing wrong. (Lang, at p. 1248.) While the Supreme Court has limited the Huens opinion insofar as it would affect another aspect of section 473 (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256), the Supreme Court did quote with approval from a relevant passage in Huens, saying that the purpose of the attorney fault provisions in section 473 " was 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. (Huens, supra, 52 Cal.App.4th at p. 264.)" (Zamora, at p. 257.)
Although the trial court considered the merits of the of the papers that were filed by the DiJulio & King law firm, plaintiffs have not presented authority as to why any court would be required to consider such papers. The DiJulio & King firm had no legal basis for filing papers since they were not attorneys of record for plaintiffs. Moreover, even if DiJulio & King were plaintiffs attorneys of record, (1) the trial court stated it did not find plaintiffs innocent (see fn. 10, ante), and did not find Mr. Williamss declaration credible, judgment calls the court was entitled to make (see fn. 5, ante); and (2) Ms. Turners declaration that was filed with the DiJulio & King papers was internally contradictory, conflicted with her prior declaration, and was generally insufficient to support the motion for mandatory relief from the dismissal.
(3) Conclusion
The papers presented by plaintiffs to the trial court in connection with their request for section 473 attorney fault relief demonstrate that even if we were to find that their attorney did not oppose defendants motion to dismiss and thus they could claim a basis for relief under section 473 (which we do not so find), they have already shown their hand with respect to what type of opposition to the motion to dismiss they would present if given the opportunity to do so, and their opposition fails as a matter of law. Therefore, the order denying their section 473 motion will be affirmed.
DISPOSITION
The order denying plaintiffs Code of Civil Procedure section 473 motion for relief from dismissal of their case is affirmed. Costs on appeal to defendant.
We Concur: KLEIN, P.J., and ALDRICH, J.