Opinion
G040055
1-29-2009
JOHN FOX et al., Plaintiffs and Appellants, v. DADSON WASHER SERVICE, INC., Defendant and Respondent.
Manning & Marder, Kass, Ellrod, Ramirez and Darin L. Wessel; Law Offices of Aaron B. Booth and Aaron B. Booth for Plaintiffs and Appellants. Steven P. Krakowsky for Defendant and Respondent.
Not to be Published in Official Reports
John Fox and Sean Mills (collectively, Fox) appeal from an order that denied their motion to vacate a judgment dismissing this action against Dadson Washer Service, Inc. (Dadson). The action was dismissed for failure to respond to discovery. Foxs main argument is that the judgment must be set aside because his attorney never received the motion to dismiss. We disagree and affirm.
FACTS
The complaint, filed in May 2007, alleged Fox had acquired a Santa Ana apartment building in 2004, subject to a prior lease of the laundry room area to Dadson. The lease was for 10 years ending in March 2005, renewable at Dadsons option for 2 additional 10-year terms. Rent was a percentage of gross income in excess of a stated minimum revenue from laundry machines installed on the premises. The complaint alleged Dadson failed to account for revenue from the machines or pay rent, and refused to vacate the premises at the end of the lease. It sets out causes of action for breach of contract, rescission, misrepresentation (revenue would exceed the minimum so rent would be payable) and other torts. In June 2007, Dadson answered and served written discovery (two sets of interrogatories and a request for production of documents).
Fox failed to respond to the discovery. After two follow-up letters and several telephone calls proved unavailing, Dadson moved to compel responses. In a supporting declaration, Dadsons attorney (Stephen P. Krakowsky) explained that during one of the conversations, Foxs attorney (Kerry Christoph) said "he had been unable to obtain any responses from his clients." The declaration also recited a history of bad relations between Fox and Dadson. In May 2006, Fox had filed an unlawful detainer action against Dadson, obtained a default judgment, and evicted Dadson. Dadson had never been served and moved to set aside the judgment, whereupon Fox stipulated to that relief. Foxs unlawful detainer action was tried and Dadson won. Fox refused to allow Dadson back into possession, so Dadson filed its own unlawful detainer action in February 2007. Dadsons case was tried in April 2007, and it prevailed. Instead of returning possession to Dadson, the declaration said, Fox responded by filing the instant action in May 2007.
The motion to compel was heard in November 2007. No opposition was filed, nor did Fox appear to contest the motion. The trial court ordered Fox to provide verified discovery responses by November 23, 2007. That date passed without anything from Fox.
This time, Dadson moved to dismiss the action for failure to obey the discovery order. In a supporting declaration, counsel said he had written to Fox on November 29, 2007, to advise that if the overdue responses were not received the following day, he would moved to dismiss the action. The letter was ignored. The motion to dismiss was heard on January 8, 2008. Once again, there was no opposition or appearance by Fox. The trial court dismissed the action, explaining "[Dadson] had been awaiting discovery responses for nearly six months. [Fox] has not complied, even when ordered to do so by the Court."
On February 7, 2008, Fox moved to vacate the judgment on the ground he had never been served with the motion to dismiss. A supporting declaration from Christoph said he first learned of the dismissal from a notice of ruling and proposed judgment his office received on January 10, 2008, two days after the motion had been granted. Christoph recited his firms procedure for opening, date stamping, and distributing incoming mail. He declared he had reviewed all such records for the period from December 1, 2007 to January 10, 2008, and found no entry showing receipt of the motion to dismiss. Christoph declared that had he received the moving papers, "I would have prepared appropriate opposition[]." The motion to vacate did not attach the still-outstanding discovery responses, nor offer any explanation for their absence.
The motion was heard on February 26, 2008. In argument, Christoph acknowledged he had received the motion to compel but said he did not oppose it because "I had no legitimate grounds to file an opposition. . . . I got those papers, I got the order [to provide responses], [and] I got Mr. Krakowskys letters [apparently referring to the letter warning of a motion to dismiss if the discovery order was disobeyed]. [¶] I did not get the motion to dismiss that was heard in January." Christoph also said "I have with me the discovery responses. They are verified by Mr. Fox . . . . They are joint responses that cover everything. I anticipate verifications from Mr. Mills later today." When asked by the court whether the response from Fox had been given to counsel previously, Christoph replied "[t]he verification was dated yesterday. . . . I was not in a position to give them to [counsel] prior to . . . noon today."
In denying the motion, the trial court said "this case was dismissed because the Court granted defendants motion for terminating sanctions — not because the motion was unopposed. [¶] [Fox] has yet to provide the discovery responses and, in this motion, entirely fails to address the issue of non-compliance with this [c]ourts order." Judgment was entered dismissing the action and awarding Dadson attorney fees and costs.
I
Fox argues he was entitled to mandatory relief from the dismissal because counsel submitted a declaration of fault that said, in effect, he was surprised to learn of the dismissal because he was never served with the motion to dismiss. We cannot agree.
Relief from a dismissal of an action is available under Code of Civil Procedure section 473, subdivision (b) . There are two bases for relief, one discretionary and the other mandatory: "The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him, or through his or her mistake, 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 . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief . . . 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." (§ 473, subd. (b), italics added.) "Where an attorney affidavit of fault is filed . . . there is no requirement that the attorneys mistake or inadvertence be excusable. [Citation.]" (Hossain v. Hossain (2007) 157 Cal.App.4th 454, 457.)
Relief under the mandatory provision is not available where the clients conduct contributed to the default or dismissal, since the attorney affidavit provision was added to the statute to protect an innocent client from the consequences of the attorneys fault. "[A] party can rely on the mandatory provision of section 473 only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal." (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 ]; but see Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 929-930 [relief available where trial court found client was mistaken but did not lie, suggesting relief should be denied only where clients intentional misconduct was a contributing cause].)
Fox was not entitled to mandatory relief from the judgment. The issue of attorney fault turned on Chrisophs claim he never received the motion to dismiss, and the trial court impliedly found that claim was not credible when it denied the motion to vacate. We cannot say that was an abuse of discretion. Christoph admitted at argument he had received all prior motions, notices, and orders served by Dadson, as well as all correspondence from Dadson. This included the motion to compel, notice of the order compelling discovery, and the letter from Krakowsky threatening a motion to dismiss after Fox had disobeyed the discovery order. Since relief under the mandatory provision depends on the trial court finding the dismissal was "in fact caused" by the attorneys conduct (§ 473, subd. (b)), and the trial court appears not to have believed the attorneys claim he never received the motion to dismiss, denial of the motion to vacate the dismissal was warranted.
Fox argues it was error to deny mandatory relief because there was no evidence of client fault in failing to respond to the discovery order. He asserts nothing indicated whether the "difficulty in obtaining responses" resulted from counsels inability to communicate with his clients, the clients failure to cooperate, or some other reason. But that is not quite accurate. The only evidence came from Krakowsky, who declared that Christoph told him in a telephone conversation prior to the motion to compel that "he had been unable to obtain any responses from his clients." Christophs declaration supporting the motion to vacate takes neither issue with this assertion nor amplifies it. On this record, the trial court certainly could have found Fox refused to provide the discovery responses. So there was evidence of client fault in refusing to provide discovery, and that is also sufficient to support the order denying mandatory relief . (Lang v. Hochman, supra, 77 Cal.App.4th at p. 1248.)
II
Fox contends it was an abuse of discretion to deny relief under the discretionary provision of section 473 because he presented the discovery responses at the hearing on the motion to vacate. We do not agree.
A motion addressed to the courts discretionary power to vacate a judgment must be accompanied by the pleading proposed to be filed (§ 473, subd. (b) ["Application for this relief shall be accompanied by a copy of the answer of other pleading proposed to be filed . . ., otherwise the application shall not be granted . . . ."].) (Italics added.) That was not done here, and it is fatal to any claim for discretionary relief.
The outstanding discovery responses were not attached to the motion to vacate, nor presented prior to the hearing. Instead, during argument on the motion, Christoph said he had with him verified responses from Fox, but not Mills, who he anticipated would sign the verification later in the day. When asked whether the Fox response had been served on Dadson, Christoph did not answer directly, but implied he had given a copy to counsel earlier that day: "The verification was dated yesterday . . . . I was not in a position to give them to [counsel] prior to . . . noon today." So as late as the day of argument on the motion to vacate, Fox still had not provided complete answers to the long-outstanding discovery. Far from abusing its discretionary power to grant relief, the trial court made the only call within its discretion in refusing to vacate the judgment in light of Foxs failure to offer the responses with the motion.
III
Fox argues he was denied due process because the trial court never expressly ruled on the question of receipt of the motion to dismiss. But no express ruling was required. An appellate court will infer any fact finding supported by the evidence that is necessary to affirm a judgment. (Matthew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1313.) Here, that means we must infer the trial court found Foxs counsel received the motion to dismiss when it refused to vacate the dismissal. So there was a ruling, though unfavorable to Fox.
Reliance by Fox on Bonzer v. City of Hunington Park (1993) 20 Cal.App.4th 1474 is misplaced. That court held it was an abuse of discretion to deny relief from default on a writ petition when defendant presented six declarations that it was never served. The declarations came from the city chief of police, his secretary, city clerk, chief administrative officer of the city, his personal assistant, and the attorney for the city. The court concluded the declarations were "detailed, credible, and unimpeached evidence of no actual notice," so the only appropriate inference was the city never received notice of the petition. (Id. at p. 1481.) The same cannot be said here. Here the court had only the declaration of Foxs attorney, arrayed against which were the facts that counsel admitted having received all prior papers served on him and mailed to him, including the order compelling discovery and a letter warning of the motion to dismiss if overdue discovery responses were not immediately forthcoming. It cannot be said there was only one inference to be drawn from these facts.
IV
Finally, Fox argues the trial court should have reconsidered the terminating sanction against him because he offered the discovery responses at argument on the motion to vacate. But that puts the cart before the horse. Before the trial court could reconsider sanctions for disobeying the discovery order, Fox had to present sufficient grounds to vacate the judgment of dismissal. Since that showing was never made, reconsideration of the motion to dismiss was not properly before the trial court. Nor does the argument the discovery responses were provided at argument improve when repeated — it is still not supported by the record. Only partial responses were provided. So no error is shown on this point. The trial courts refusal to vacate the judgment dismissing the action was entirely justified.
Since Fox was not entitled to either mandatory or discretionary relief from the judgment dismissing this action, the order appealed from is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR:
SILLS, P. J.
FYBEL, J. --------------- Notes: All subsequent statutory references are to the Code of Civil Procedure.