Opinion
B320819
10-16-2023
WILLIAM HAWKES, Plaintiff and Appellant, v. JAMES WESTBROOK, Defendant and Respondent.
Kousha Berokim for Plaintiff and Appellant. Jacobson, Russell, Saltz, Nassim & de la Torre, Michael J. Saltz and Elana R. Levine for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, BC610791 Gregory Keosian, Judge. Affirmed.
Kousha Berokim for Plaintiff and Appellant.
Jacobson, Russell, Saltz, Nassim & de la Torre, Michael J. Saltz and Elana R. Levine for Defendant and Respondent.
ADAMS, J.
William Hawkes appeals from an order denying his motion seeking relief from the dismissal of his complaint against James Westbrook. The trial court dismissed the complaint with prejudice in August 2021, after Hawkes's counsel, Kousha Berokim, failed to appear at an order to show cause hearing. Over two months later, Hawkes moved for relief under Code of Civil Procedure section 473, subdivision (b), on the ground that the dismissal was caused by his attorney's mistake. The trial court denied the motion after finding the dismissal was not the result of Berokim's mistake, but instead occurred because Hawkes had deliberately abandoned the lawsuit. We affirm.
All further statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, Hawkes filed a complaint against Westbrook for breach of contract and fraud. Although Hawkes obtained a default judgment in April 2018, Westbrook moved to set it aside in November 2019. Hawkes did not file an opposition to the motion or appear at the hearing. The trial court granted Westbrook's motion, set aside the default judgment, and scheduled a case management conference for February 2020. Hawkes did not appear for the case management conference. The minute order from the proceeding indicated: "Defendant represents no communication with Counsel for plaintiff and no receipt of plaintiff's Case Management Statement." The court set a March 2020 order to show cause hearing regarding dismissal "for Plaintiff's Failure to Appear for Case Management Conference and Failure to file a Case Management Statement."The deputy clerk sent notice of the hearing to Berokim, but the mailing address included the wrong zip code. However, Berokim appeared at the March 2020 hearing. The court scheduled a postmediation status conference for July 2021 and a final status conference and jury trial for September 2021.
This was not the first order to show cause hearing set in the matter. In June 2017, the court set an order to show cause for failure to file a default judgment. At an October 2017 order to show cause hearing regarding "dismissal for Plaintiff's failure to appear at order to show cause re: default judgment," the minute order indicated: "Plaintiff represents client unavailable to authorize default judgment." The minute order from a subsequent January 2018 order to show cause hearing regarding default judgment indicated: "Plaintiff represents client out of the country and default judgment packet not yet completed or submitted to the default judgment unit." Similarly, the minute order from a March 2018 order to show cause regarding default judgment hearing stated: "Plaintiff represents client remains out of the country and default judgment packet not approved for completion and submission to the default judgment unit."
Neither Berokim nor Hawkes attended the July 2021 postmediation status conference. The court issued another order to show cause regarding dismissal based on Hawkes's failure to appear and scheduled a hearing for August 2021. The deputy clerk served notice on Berokim by mail. The notice was again mailed to the correct street address, but with the wrong zip code. Berokim did not appear at the order to show cause hearing and, at Westbrook's "oral request," the court dismissed the complaint with prejudice. Hawkes and Berokim did not attempt to appear for the final status conference or jury trial previously scheduled for September 2021, nor did they contact Westbrook or the court regarding those proceedings. Hawkes never propounded discovery requests or contacted Westbrook to discuss settlement.
In November 2021, Hawkes filed a motion for relief pursuant to section 473. In support of the motion, Berokim submitted a declaration asserting he did not attend the July 2021 postmediation status conference "[d]ue to what appears to be a calendaring mistake." He further declared that the clerk's notice of the August 2021 order to show cause hearing had the wrong zip code and he claimed he did not receive the notice. Berokim further averred that although Westbrook's counsel filed a proof of service of the August 2021 dismissal notice, he did not receive the notice, and he only learned of the dismissal in November. Based on the declaration, Hawkes argued the dismissal was caused by Berokim's mistake. Westbrook opposed the motion, arguing the dismissal was in fact caused by Hawkes's abandonment of the case.
The trial court did not find Berokim credible. The court noted that while Berokim claimed he did not attend the August order to show cause hearing because notice was sent to the wrong zip code, "this error was present in prior notices, but never previously hampered notice to [Berokim]." And although Berokim "conten[ded] that he only learned of the dismissal in November 2021," he failed to attempt to appear at the final status conference or jury trial scheduled in September, "or at least contact opposing counsel about same." In addition, the court noted Hawkes "failed to serve any discovery or [make] settlement overtures in this case." The trial court found the dismissal was not caused by Berokim's mistake but was instead the result of Hawkes's failure to prosecute the lawsuit. The court therefore denied the motion. Hawkes timely appealed.
DISCUSSION
On appeal, Hawkes argues the trial court (1) should have granted his application for mandatory relief based on his attorney's mistake and (2) abused its discretion in denying his motion. Hawkes appears to seek relief under both the mandatory and discretionary relief provisions of section 473, subdivision (b). We find no merit in his contentions and affirm.
I. The Trial Court Did Not Err in Denying Mandatory Relief
A. Standard of Review
Under section 473, subdivision (b), the trial court "shall" relieve a party from a dismissal when the application is "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect," unless "the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
"A trial court's finding on the causation issue will be affirmed so long as it is supported by substantial evidence. [Citation.] If the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm." (Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 867.) This analysis "clearly involves an assessment of credibility by the trial court." (Johnson v. Pratt &Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622 (Johnson).) "Credibility is an issue for the fact finder.... [W]e do not reweigh evidence or reassess the credibility of witnesses." (Ibid.)
B. Substantial Evidence Supported the Trial Court's Findings
Hawkes moved for mandatory relief on the basis that the dismissal was caused by his attorney's mistake. In support of the motion, Berokim submitted a sworn declaration asserting he did not attend the July 2021 hearing "[d]ue to what appears to be a calendaring mistake" and he "did not receive the notice of the August 20, 2021 Order to Show Cause hearing" because it was sent to the wrong zip code.
However, as noted above, the causation analysis under section 473, subdivision (b) "involves an assessment of credibility by the trial court." (Johnson, supra, 28 Cal.App.4th at p. 622.) Here, the trial court reasonably discredited Berokim's explanations for his failure to appear. Although the notice of the August 2021 hearing listed an incorrect zip code, the court observed this error "was present in prior notices, but never previously hampered notice" to Berokim. Specifically, the deputy clerk sent notice of an order to show cause hearing and continued case management conference using the wrong zip code in February 2020, yet Berokim attended the proceedings. Since Berokim had attended past hearings even when the mailing address on the notice of hearing had the wrong zip code, the court found not credible Berokim's claim that he did not receive notice of the August 2021 hearing because of the zip code error.
The trial court also noted that Berokim did not attempt to appear at the final status conference or jury trial scheduled for September 2021 and he did not contact opposing counsel about those previously scheduled dates. Berokim offered no explanation. The court reasonably found Berokim's failure to attempt to appear for the previously scheduled final status conference and jury trial "further impaired" his credibility. "The trial court-who, unlike us, was also able to assess . . . counsel's credibility in person-could reasonably find his declaration not credible. We have no basis to disturb this finding on appeal." (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.)
Hawkes's reply brief notes that these proceedings were vacated in August along with the dismissal, and argues "one cannot fail to appear at a hearing or trial that does not exist." But if Hawkes, through Berokim, was diligently prosecuting the case, yet failed to receive notice of the August order to show cause hearing regarding dismissal, he should have believed the case was proceeding to trial in September 2021, and Berokim should have attempted to appear on these previously scheduled dates.
In sum, substantial evidence supported the trial court's finding that the dismissal was the result of Hawkes's deliberate failure to prosecute the case, not his attorney's mistake in missing the order to show cause hearing. As discussed above, the court did not find Berokim credible, and "we do not . . . reassess the credibility of witnesses." (Johnson, supra, 28 Cal.App.4th at p. 622.) In addition, Hawkes and his counsel missed several court dates scheduled in Berokim's presence (including the trial date) and Hawkes failed to propound any discovery or make any attempt to settle the case. Indeed, aside from appearing at one case management conference and filing the motion for relief from dismissal, the record does not reflect that Hawkes made any effort to prosecute the lawsuit after obtaining a default judgment in 2018. The trial court properly denied mandatory relief under section 473, subdivision (b).
II. The Trial Court Did Not Err in Denying Discretionary Relief
To the extent Hawkes argues the trial court should have granted discretionary relief, we disagree. Section 473, subdivision (b) provides that the trial court "may" relieve a party from a dismissal "taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." As discussed above, the trial court provided a detailed analysis of Berokim's declaration and the trial court proceedings. Based on this analysis it found the case was dismissed because Hawkes had "deliberately abandoned" the lawsuit, and not because of any mistake. Neither Hawkes's motion nor the accompanying attorney declaration provided any other basis for the trial court to find the dismissal was the result of "inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) A motion for permissive relief under section 473, subdivision (b)" '" 'is addressed to the sound discretion of the trial court,'" '" (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929), and the trial court ruling did not exceed the bounds of reason in this case.
DISPOSITION
The trial court order is affirmed. Respondent to recover his costs on appeal.
We concur: EDMON, P. J. EGERTON, J.