Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC282220. Mel Red Recana, Judge.
Lewis Brisbois Bisgaard & Smith, Judith M. Tishkoff and Jeffry A. Miller for Defendant, Cross-Complainant and Appellant Parr Contracting Co.
No appearance for Plaintiff and Respondent James P. McAteer.
Archer Norris, W. Eric Blumhardt, Richard W.Vanis, Jr. and Kimberly M. Amick for Defendant, Cross-Complainant and Respondent Martin Bros./Marcowall, Inc.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Parr Contracting Company (Parr) appeals from the order vacating the order granting summary judgment and the summary judgment in favor of Parr and vacating dismissal of the cross-complaint filed by Martin Bros./Marcowall, Inc. (Martin Bros.). We affirm the order.
BACKGROUND
On October 4, 2001, James P. McAteer, an employee for Permasteelisa Cladding Technologies (Permasteelisa), allegedly was injured when he tripped over a hose while he was working on the construction of the Walt Disney Concert Hall. His personal injury complaint sought damages based on the negligence and premises liability of certain companies involved in that construction. The hose was allegedly owned by defendant Martin Bros., the project fireproofing contractor. Martin Bros. cross-complained against Parr, a concrete subcontractor, for indemnity. In turn, Parr filed an indemnity cross-complaint against Martin Bros.
As the case progressed, several of the other companies working at Disney Hall were added as defendants and cross-defendants, as the parties sought to assign responsibility for the hose upon which plaintiff allegedly tripped. Some defendants that thought they should be eliminated from suspicion moved for summary judgment and obtained dismissals by the plaintiff, together with judicial determinations that these settlements were entered in good faith. Among these defendants was Martin Bros.
On October 31, 2003, Martin Bros. filed a motion for summary judgment on the complaint on the ground McAteer could not establish his causes of action for general negligence and premises liability against Martin Bros. In support, Martin Bros. filed the declarations of Sid Rosales, its fireproofing foreman, Gino Capra, its project foreman, Ronald Le Britton, Sr., its project supervisor, and Mohamad N. Chahine, Martin Bros.’ then president. These purported to show that Martin Bros. did not own the offending hose; its hoses were smaller and different in appearance from that hose; and Parr was the one responsible for the injury, because it was performing demolition and repair work on a stairway just outside where McAteer tripped. Martin Bros.’ attorney Richard W.Vanis, Jr. (Vanis), in communications with McAteer’s counsel, Thomas G. Stolpman (Stolpman), assured the latter of the accuracy of these declarations and of Martin’s nonliability. Rather than opposing the summary judgment motion, McAteer on December 2, 2003 dismissed his complaint with prejudice against Martin Bros. in exchange for a waiver of costs, then sought an order from the trial court determining that the settlement was in good faith and dismissing the cross-complaint of Parr, among others. The trial court found the settlement between McAteer and Martin Bros. to be in good faith and ruled: “[T]he court orders that all pending and future claims by any alleged joint tortfeasors as against [Martin Bros.] for equitable, comparative contribution, or declaratory relief or partial or comparative indemnity based upon negligence or comparative fault are dismissed and forever barred.”
On December 24, 2003, Martin Bros. filed a notice of taking its motion for summary judgment off calendar.
On March 19, 2004, Parr filed a motion for summary judgment on the complaint and cross-complaint of Martin, among others. Attorney Vanis was served with the motion, but the notice of motion indicated summary judgment was sought only as to McAteer. Parr offered evidence to show it did not cause or contribute to McAteer’s injury, did not own or have any control over the site, and did not control McAteer’s work. Parr denied it was working in the area where McAteer fell or that it owned or controlled the hose over which McAteer fell. Parr submitted evidence indicating that another subcontractor, not Parr, provided fireproofing services; McAteer fell over a “fireproofing hose”; and such hoses are the same size as the hose depicted in the photograph of the offending hose. Parr also argued that, as a matter of law, the indemnity cross-complaint of Martin Bros., among others, also must fail because Parr did not owe any duty of equitable indemnity in the absence of liability on the part of Parr to McAteer.
On July 30, 2004, notice was filed that Parr’s motion for summary judgment had been continued to October 18, 2004. On September 27, 2004, McAteer filed a non-opposition to that motion.
On September 29, 2004, McAteer filed a motion to vacate the good faith settlement determination obtained by Martin Bros. and also filed a companion motion to vacate the dismissal of Martin on the ground of extrinsic fraud or mistake arising from attorney Stolpman’s reliance on Vanis’ representations, which the former now believed to be inaccurate.
On October 18, 2004, following a hearing, the trial court granted Parr’s motion for summary judgment and entered judgment in favor of Parr and against McAteer.
On November 3, 2004, the trial court granted McAteer’s motions to vacate the good faith determination and dismissal of Martin Bros. from the complaint. Martin Bros. filed an appeal and McAteer filed a protective appeal from this order. Martin Bros. also filed a petition for writ of mandate.
On December 16, 2004, the trial court ruled: “Pursuant to the Notice of Appeal filed December 10, 2004, proceedings are ordered stayed.”
In an unpublished opinion (B179968) filed September 18, 2006, this court dismissed the appeals as having been taken from a nonappealable order. We denied the petition for writ of mandate after finding the trial court did not abuse its discretion, because “[a]ttorneys should be able to rely on one another’s word in conducting negotiations and litigation.” On December 13, 2006, our Supreme Court denied Martin Bros.’ petition for review. The remittitur issued on January 4, 2007.
On February 20, 2007, Martin Bros. filed a motion to vacate the order granting summary judgment and summary judgment in favor of Parr and to “reinstate” Martin Bros.’ cross-complaint on the ground of mistake, inadvertence, surprise, or excusable neglect under Code of Civil Procedure section 473, subdivision (b) [section 473(b)]. Martin Bros. argued that Parr’s motion had not been directed to it; that it did not get notice of the ultimate hearing date on that motion, after some continuances thereof; that it was not even a party to the litigation at that time, having already been dismissed; and that it had neither opportunity nor reason to oppose Parr’s motion. Parr argued that Martin Bros. had the opportunity and incentive to oppose its summary judgment motion; Martin Bros.’ cross-complaint against Parr was still then pending; and that Martin Bros. knew prior to the good faith settlement that Parr was going to move first and was moving for summary judgment based on the fact that it was not liable.
The trial court took the motion under submission at the conclusion of the hearing.
On March 29, 2007, the court granted the motion to vacate the summary judgment in favor of Parr after finding the cross-complaint of Martin Bros. against Parr was voluntarily dismissed “based on the Settlement of the McAteer Complaint” and that the motion for summary judgment “was unopposed by [Martin Bros.] based on the settlement.” In granting the other relief requested, the court explained: “[B]ecause the court vacated its ORDERS determining a ‘Good Faith Settlement,’ equity, justice, and fairness dictate that [the court] must also vacate the dismissal of the Martin Bros. cross-complaint filed December 30, 2002.”
This appeal by Parr followed.
DISCUSSION
1. Motion Under Section 473(b) Timely and Diligently Filed
Parr contends the trial court was without authority to vacate the summary judgment or vacate dismissal of Martin Bros.’ cross-complaint, because the motion to vacate was not brought within the six month time bar of section 473(b) and, alternatively, that Martin Bros. did not act diligently in filing the motion.
“‘In order to qualify for relief under section 473, the moving party must act diligently in seeking relief....’ (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) Section 473 provides that applications for relief must be ‘made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken.’” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250, 258, fn 5.)
The record establishes order granting summary judgment and summary judgment in favor of Parr was entered on October 18, 2004. The motion for relief under section 473(b) was not filed until February 20, 2007, years beyond the requisite six month time period. Ordinarily, the trial court therefore would have been without jurisdiction to act on Martin Bros.’ discretionary section 473(b) motion. (See, e.g., Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340; see also, Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528.)
In this instance, Martin Bros.’ motion is not time-barred. The running of the six month period was tolled for the duration of the stay imposed by the trial court, which was issued on December 16, 2004 and was not lifted until issuance of the remittitur on January 14, 2007. The section 473(b) motion filed on February 20, 2007 thus was filed within the mandatory six month period.
That Martin Bros. acted with due diligence in filing the motion is evidenced by its showing that following the remittitur, it was conducting discovery to prepare opposition to Parr’s summary judgment motion. In support of its motion to vacate, Martin Bros. argued “[f]rom review of … discovery, it was determined that [Parr’s] probability of liability for [McAteer]’s alleged injury is strong and the instant motion was thereafter prepared.” The discovery referred to was the deposition testimony of Ross Bacon, Parr’s then site supervisor, which Martin Bros. asserted “showed Mr. Bacon did not recall seeing a hose lying around Element 5 (the location of plaintiff’s alleged injury) during the week of October 1, 2001 [when McAteer was injured]; that Mr. Bacon is not sure if he is familiar with high pressure or low pressure hoses used for fireproofing, that it ‘is hard to say’ when fireproofing was being performed in Element 5, and that Mr. Bacon never did anything to verify hoses belonged to Martin Bros[.]” This showing tended to negate Parr’s innuendo that the offending hose belonged to Martin Bros.
2. Order Vacating Summary Judgment Not Abuse
Parr contends the trial court abused its discretion in granting the motion to vacate the summary judgment, because Martin Bros. failed to show the requisite mistake. There was no abuse.
The movant seeking discretionary relief based on mistake under section 473(b), in addition to diligence, must establish “a satisfactory excuse for the occurrence of that mistake. (Citation.) The court must generally consider the facts and circumstances of a case to determine... whether the reasons given for the party’s mistake are satisfactory.” (Billings v. Health Plan of America, supra, 225 Cal.App.3d 250, 255.) “Generally speaking, the trial court’s ruling on a discretionary motion for relief is reviewed for an abuse of discretion. (Citation.) But ‘because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’ (Citations.) For that reason, ‘a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’” (Citation.)” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419-1420.) “Additionally, where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted, the policy of permitting trial on the merits must prevail. (Citation.) In such situations, ‘very slight evidence will be required to justify a court in setting aside the default.’ (Citation.)” (Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329.)
Mindful of these principles, we conclude Martin Bros. met its burden to show that its mistake in not opposing Parr’s summary judgment motion was excusable. Although it had notice of the motion, Martin Bros. reasonably believed that the motion was not addressed to it, because Martin Bros. already had obtained an order determining its settlement with McAteer was in good faith and a companion order dismissing Parr’s indemnity cross-complaint against Martin Bros. Martin Bros. thus had no incentive to oppose Parr’s summary judgment motion prior to the date when McAteer’s motion to vacate the good faith settlement determination was granted, which occurred after the order granting summary judgment and the summary judgment in favor of Parr.
3. Dismissal of Cross-Complaint
The record reflects uncertainty about the fate of Martin Bros.’ cross-complaint against Parr for indemnification. In the minute order that is the subject of this appeal, the trial court noted that “The December 30, 2002 Martin Bros. Cross-Complaint for Indemnity against Parr for damages awarded in the McAteer Complaint was voluntarily dismissed by Martin based on the Settlement of the McAteer Complaint.” Other than that notation, we can find no record of such a dismissal, nor any request therefor. Parr suggests that this cross-complaint remained in effect even after McAteer dismissed its complaint against Martin. In this circumstance, it was appropriate for the trial court to act upon its analysis of the file and to give Martin complete relief by vacating any dismissal of its cross-complaint for indemnification.
DISPOSITION
The order vacating the order granting summary judgment and summary judgment and reinstating Martin’s cross-complaint is affirmed. Each party shall bear its own costs on appeal.
I concur: ROTHSCHILD, J.
MALLANO, P. J., Dissenting.
I would reverse the order vacating the order granting the summary judgment motion and summary judgment in favor of Parr Contracting Company (Parr) on the complaint of James P. McAteer because the trial court was without authority to grant the motion for relief from a judgment by Martin Brothers/Marcowall, Inc. (Martin Bros.) filed more than two years after judgment. An application for such relief must be made “in no case exceeding six months, after the judgment[.]” (Code Civ. Proc., § 473, subd. (b), italics added.) “... [A] court has no authority under section 473, subdivision (b), to excuse a party’s noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.) This six-month period is not subject to tolling, unlike the tolling provision applicable to the delay in prosecution statutes. (See Code Civ. Proc., § 877.6, subd. (e)(3) [“The running of any period of time after which an action would be subject to dismissal pursuant to the applicable provisions of Chapter 1.5 [‘Dismissal for Delay in Prosecution’] (commencing with Section 583.110) of Title 8 of Part 2 shall be tolled during the period of review of a [good faith settlement] determination pursuant to this subdivision.”].)
A court in equity may relieve a party from default only due to extrinsic fraud or mistake. (See, e.g., Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 502–503.) But neither is present here. Martin Bros. knew summary judgment on the complaint in favor of Parr would render its cross-complaint against Parr a nullity because relief was contingent on Parr’s liability to McAteer. Martin Bros. decided not to file opposition in view of its good faith settlement, but it did so at its own peril because it knew a motion to vacate the settlement was pending. We upheld the order setting aside the good faith settlement based on the fraud of its counsel. (McAteer v. Martin Brothers/Marcowall, Inc. (Sept. 18, 2006, B179968) [nonpub. opn.].) Martin Bros. might argue lack of opposition was due to excusable neglect, but this is intrinsic mistake, for which equitable relief is not available.
Additionally, the equities favor Parr, which did nothing to hinder Martin Bros. Parr demonstrated it was not in the area when McAteer was injured and neither owned nor controlled the hose over which McAteer allegedly tripped. Martin Bros. had ample opportunity to refute this showing prior to grant of summary judgment but did nothing, and to date fails to offer any basis for liability on the part of Parr or show Parr would not be prejudiced by the long delay.
I would vacate the order vacating dismissal of the cross-complaint of Martin Bros. against Parr because this cross-complaint was never dismissed. In its motion for relief, Martin Bros. expressly admitted its cross-complaint against Parr “was never dismissed.” No order of dismissal is in the record. That the trial court indicated the cross-complaint was dismissed earlier in vacating the dismissal does not cure the lack of a dismissal order.