Opinion
A146714
10-21-2016
MARY PAULINE EDWARDS et al., Plaintiffs and Appellants, v. COUNTY OF SAN JOAQUIN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCS043349)
Plaintiffs, proceeding in propria persona, appeal from an order denying their motion to vacate a voluntary dismissal with prejudice as against defendants the County of San Joaquin (sued as San Joaquin General Hospital) and Dr. Priyasheelta Nand. While plaintiffs admittedly were aware of and approved a dismissal as to San Joaquin and Nand, they claim their attorney was not authorized to dismiss these defendants with prejudice. They, thus, claim the dismissal was "void" and subject to being vacated at any time, regardless of the six-month limitations period otherwise applicable to motions to vacate under Code of Civil Procedure section 473, subdivision (b). We reverse.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, the surviving spouse and children of James Edwards, filed an action for Edwards' allegedly wrongful death against a number of defendants, including San Joaquin General and Dr. Nand. San Joaquin and Nand, a physician employed by the county hospital, demurred on the ground plaintiffs had failed to file a claim with the county as required by the Government Tort Claims Act (Gov. Code, § 900 et seq.). They also moved to strike those portions of the complaint alleging compliance with the claims statue. In support of their demurrer and motion to strike, San Joaquin General and Nand requested judicial notice of a claim rejection issued by the State of California (not by the county).
In response, plaintiffs, through counsel, filed a request for dismissal with prejudice as to San Joaquin General and Nand. More than nine months later, they filed a new action against San Joaquin General and Nand in federal court under the Civil Rights Act (42 U.S.C. § 1983), to which the government claims statutes do not apply. Defendants responded with a successful motion to dismiss the federal case based on the res judicata effect of the dismissal with prejudice of the state court case.
The unopposed motion for judicial notice is granted. --------
Plaintiffs, at this point proceeding in propria persona, returned to state court and filed a motion to vacate the dismissal with prejudice. Defendants opposed the motion, pointing out the six-month time limit set forth in section 473, subdivision (b), had long since run and asserting plaintiffs could not, in any case, demonstrate excusable neglect or inadvertence.
The trial court denied the motion to vacate.
DISCUSSION
Section 473, subdivision (b), states in relevant part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . 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 judgement 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. . . ." (§ 473, subd. (b).)
The initial provisions of section 473 subdivision (b), thus, allow a trial court, in its discretion, to grant relief for excusable mistake, inadvertence, surprise or neglect. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-256.) The latter provisions of subdivision (b), in contrast, mandate relief for self-confessed attorney error and do not require a showing by the attorney of excusable mistake, inadvertence, surprise or neglect. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 608-610; Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 909.) The aim of these mandatory relief provisions is to forestall "additional malpractice litigation." (Matera v. McLeod (2006) 145 Cal.App.4th 44, 67.)
Here, plaintiffs did not submit a declaration by their attorney. Accordingly, they cannot rely on the mandatory relief provisions of section 473 subdivision (b) applicable where there is attorney error. There also is no dispute, plaintiffs did not file their motion to vacate within subdivision (b)'s mandatory six-month time period. They voluntarily dismissed their state court action on July 2, 2014, but did not file their motion to vacate the dismissal until August 7, 2015, more than a year later. Accordingly, they cannot rely on the permissive provisions of subdivision (b) either.
As they did in the trial court, plaintiffs rely principally on Romadka v. Hoge (1991) 232 Cal.App.3d 1231 (Romadka), to overcome the six-month limitations period. In that case, the plaintiffs sued two brothers, obtained a default judgment against one, but failed to timely serve the other, leaving the case exposed to statutory dismissal without prejudice (§ 583.250). They therefore filed, within the limitations period, a new action in another county against the unserved brother. Six months later, the plaintiffs' attorney filed a dismissal of the first case with prejudice. In the new case, the now served brother alleged res judicata as an affirmative defense (but apparently did not specify it was based on the dismissal with prejudice). A year later, at trial, the brother presented the court with a copy of the dismissal with prejudice, and the court continued the matter for briefing on its legal effect on the pending case. (Romadka, at p. 1234.) Plaintiffs and their attorney, having now realized the dismissal with prejudice box had been mistakenly checked on the dismissal form, sought to vacate the dismissal, but were unsuccessful. (Ibid.) As a result, the second court dismissed the second case on res judicata grounds. (Ibid.) The Court of Appeal reversed the order denying the motion to vacate, relying on language in section 473 that now appears in subdivision (d) and also reversed the dismissal of the second case. (Romadka, at pp. 1235-1237.)
Subdivision (d) of section 473, on which the Romadka Court relied, provides, in pertinent part, that a court "may, on motion of either party . . . set aside any void judgment or order" (§ 473, subd. (d)). "An attorney's unauthorized disposition of a clients' substantive rights," explained the court, "is invalid and a judgment based thereon is therefore void." (Romadka, supra, 232 Cal.App.3d at p. 1236.) And "[c]learly," said the court, "a dismissal with prejudice disposes of the client's substantive rights and therefore requires for its validity the authorization of the client." (Ibid.) Moreover, a dismissal " 'by an attorney acting without any authority from his client . . . on proper proof, may be vacated at any time.' " (Ibid. quoting Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 509.) The appellate court then pointed out the trial court had "had before it the attorney's declaration and testimony that she acted without authority and by mistake," and "[g]iven that there was no conceivable reason to dismiss the action with prejudice rather than without prejudice, the trial court could not have disbelieved this evidence." (Romadka, at p. 1237.)
San Joaquin General and Dr. Nand contend plaintiffs cannot rely on section 473, subdivision (d), and thus cannot rely on Romadka, because plaintiffs based their motion to vacate on subdivision (b) of section 473. As defendants point out, in the "legal standards" section at the outset of plaintiffs' memorandum of points and authorities, plaintiffs cited only to subdivision (b). However, in the next section of their memorandum, plaintiffs cited at length to Romadka. Defendants, thus, had notice plaintiffs were invoking the reasoning of that case and had every opportunity to respond. Accordingly, we will not find a forfeiture of any rights under subdivision (d).
San Joaquin and Dr. Nand also cite to a more recent decision, Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818 (Nixon Peabody), involving section 473, subdivision (d) and distinguishing Romadka. In Nixon Peabody, the plaintiffs filed three lawsuits on three successive days against the same defendant—the first in California state court, the second in federal court in Texas, and the third in federal court in California. (Nixon Peabody, at p. 820.) For several months, the parties actively litigated all three cases. Then, on counsel's advice, the plaintiffs dismissed their state and federal cases in California, leaving only their Texas federal case. This resulted in the Texas case being dismissed under the "federal two-dismissal rule" on res judicata grounds. (Ibid.) That rule, provides in pertinent part: "[u]nless the notice or stipulation [of dismissal] states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a dismissal operates as an adjudication on the merits." (Fed. Rules Civ. Proc., rule 41(a)(1)(B), 28 U.S.C.A.)
After the Texas dismissal was affirmed on appeal, the plaintiffs sought, unsuccessfully, to vacate the dismissal of the California federal case. While that adverse federal ruling was on appeal, the plaintiffs sought to vacate the dismissal of the California state court case. This time they met with success in the trial court. (Nixon Peabody, supra, 230 Cal.App.4th at pp. 820-821.) The California Court of Appeal, however, granted writ relief and ordered the trial court to vacate its order granting the plaintiffs' motion. (Id. at pp. 822-824.)
Romadka, said the Nixon Peabody court, involved an "unauthorized disposition of a client's substantive rights" as a result of counsel mistakenly checking the with prejudice box on the dismissal. (Nixon Peabody, supra, 230 Cal.App.4th at p. 823) That was not the scenario before the Nixon Peabody court, as the case did "not involve a dispute over whether [the plaintiffs] were unaware of or did not authorize the dismissal; they discussed the matter with [their attorney] and authorized him to dismiss the two cases." (Ibid.) The Nixon Peabody court was not aware of any authority "indicating a voluntary dismissal resulting from erroneous advice (i.e., the failure to apprise the plaintiffs of the federal two-dismissal rule) is void under section 473, subdivision (d). The fact that [counsel] mistakenly gave incorrect legal advice leading to dismissal of a separate case in another jurisdiction does not render the dismissal in this action void." (Ibid.) The court further pointed out, subdivision (b) of section 473, was meant to address such errors, but the plaintiffs had failed to timely seek relief under that provision. "Since the [plaintiffs'] tactical decision to voluntarily dismiss the underlying case without prejudice was not a void judgment or order, the trial court had no authority to set aside the dismissal." (Nixon Peabody, at p. 824)
There is arguably some tension between Romadka and Nixon Peabody. While Nixon Peabody distinguished Romadka as involving a mistaken dismissal with prejudice, it is clear the plaintiffs in Romadka were aware of and authorized the dismissal. They were only unaware (as was their attorney apparently) of the fact the dismissal was with prejudice. So, too, the plaintiffs in Nixon Peabody were aware of and authorized the dismissal of their California state and federal lawsuits. They were only unaware (as was their attorney apparently) of the fact their dismissal without prejudice had, under the federal, two-dismissal rule, the same effect as a dismissal with prejudice.
Nevertheless, there is a distinction, as the Nixon Peabody court recognized, between an authorized act and the legal ramifications of such act, which may or may not be known to the authorizing party. In Romadka, the plaintiffs did not authorize the dismissal with prejudice filed by their attorney. In Nixon Peabody, the plaintiffs did authorize the dismissal without prejudice, but did so unaware of its ramifications under the federal, two-dismissal rule.
The instant case falls under Romadka. Plaintiffs claim the dismissal with prejudice was, itself, unauthorized, not that it was authorized, but they failed to understand its legal ramifications.
As defendants point out, unlike in Romadka, here there is no attorney declaration or testimony attesting that counsel was not authorized to dismiss with prejudice as against San Joaquin General and Dr. Nand. However, plaintiffs submitted their own declaration, wherein they stated: "Being made aware of this fatal procedural error under CAL. GOVT. code section 945.4 (i.e., the failure to file a claim against the county) plaintiffs agreed with their counsel to voluntarily dismiss the state claim against defendants San Joaquin and Nand and pursue seeking damages in federal court where the tort claim notice is not a requirement." While they did not state whether their attorney discussed with them the difference between a dismissal with prejudice and a dismissal without prejudice, they did state: "Plaintiffs' attorney inadvertently made a clerical error by checking the box 'with prejudice' instead of 'without prejudice' on the government form." It was "an inadvertent clerical error," according to plaintiffs, "because the attorney for plaintiffs was aware of plaintiffs' intent to file the subsequent section 1983 action in federal court." In other words, their attorney could not have intended to have paved the way for their federal court lawsuit and, at the same time, have intended to deprive plaintiffs of their right to proceed with it through the preclusive effect of a dismissal with prejudice.
Thus, while plaintiffs acknowledged they could not testify as to their attorney's intent, they asserted, themselves, that they never authorized their lawyer to file a dismissal with prejudice and thus wholly foreclose their alleged federal civil rights claims against San Joaquin General and Dr. Nand. (See Romadka, supra, 232 Cal.App.3d at p. 1236.) Nor, to use Romadka's words, is there any reason why their attorney would have done so. (Id. at p. 1237.)
Defendants also claim there are no "corroborating" circumstances here supporting plaintiffs' sworn assertions that their attorney was not authorized to file a dismissal with prejudice. Defendants point out that in Romadka, the plaintiffs were facing dismissal of their first lawsuit without prejudice for failure to serve the complaint and the statute of limitations had not yet run, allowing timely filing of the second lawsuit. According to defendants, "[t]hese factors, in conjunction with the attorney's sworn testimony that she acted without authority and by mistake in submitting the dismissal with prejudice, formed the basis" of the Romadka court's holding that the plaintiffs' motion to vacate should have been granted under the language now in section 473 subdivision (d).
We read Romadka as turning on the principle a client must authorize an action that disposes of his or her substantive rights, and that the appellate court concluded the plaintiffs had made an adequate evidentiary showing that had occurred. It is apparent that in Romadka, as here, the plaintiffs filed a second lawsuit to get out of a procedural pickle and their attorney then inadvertently dismissed the first lawsuit with prejudice, without thinking about the preclusive consequences of such a dismissal. There is nothing in Romadka that suggests the plaintiffs there did not authorize or know about the dismissal of the first lawsuit; rather, the emphasis throughout Romadka is that the plaintiffs never authorized a dismissal with prejudice, an action that effectively cut off their rights to continue to pursue the second brother. The situation in the instant case is similar, only here plaintiffs filed the unauthorized dismissal with prejudice before they filed their federal court action. Plaintiffs averred, however, that their lawyer was aware at the time of the dismissal that plaintiffs were contemplating pursuing claims in federal court.
We therefore conclude Romadka is on point and the trial court should have granted plaintiffs' motion to vacate under section 473, subdivision (d).
Plaintiffs make no claim that, with their motion to vacate granted, they can proceed with their state tort claims against San Joaquin General Hospital and Dr. Nand. As they admitted in the trial court, their failure to file a tort claim with the county is a "fatal procedural error" as to those claims. Nor do we have any occasion to comment on whether plaintiffs could properly be allowed leave to file an amended complaint to add civil rights claims against San Joaquin General Hospital and Dr. Nand, let alone, comment on the merits of any such claims.
DISPOSITION
The order denying plaintiff's motion to vacate is reversed. Costs on appeal are awarded to plaintiffs.
/s/_________
Banke, J. We concur: /s/_________
Humes, P. J. /s/_________
Dondero, J.