Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. SCV137622, Kenneth Barr, Judge.
Law Offices of William G. Schweizer and William G. Schweizer for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz for Defendant and Respondent.
OPINION
McKinster, Acting P.J.
Plaintiff and appellant Dianne Myslicki appeals after the court dismissed her automobile personal injury action as a sanction for failure to respond to discovery. Six months after the terminating sanction, plaintiff’s counsel moved to vacate the dismissal. The trial court denied the motion to vacate. Plaintiff appeals from the judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff was involved in an automobile accident in 2004. A predecessor attorney filed a personal injury complaint for plaintiff in May 2006, nearly two years after the accident. Defendant and respondent John Im filed an answer in June 2006, and immediately began discovery.
By August 2006, two months later, no responses had been served. Defense counsel wrote to plaintiff’s attorney, requesting interrogatory responses. In September 2006, plaintiff’s attorney stated that he was having difficulty locating plaintiff, and that the loss of contact with plaintiff was the reason for the delayed responses. Counsel’s inability to contact plaintiff would also mean that she would not attend her scheduled deposition on September 12, 2006.
After sending another letter, and receiving no responses, defense counsel moved for an order to compel compliance with discovery. The trial court heard and granted the motion to compel discovery on October 12, 2006. The court ordered plaintiff to serve verified answers to interrogatories by October 31, 2006, and to pay sanctions of $580.
As of November 10, 2006, plaintiff’s counsel had agreed that plaintiff could be deposed on November 29, but then later telephoned and asked for a postponement to December 11. Plaintiff’s counsel also represented, as of the November 10 conversation with defense counsel, that he had plaintiff’s interrogatory answers in hand, and would provide them by November 15. By November 27, 2006, however, no discovery responses had been served, and the sanctions remained unpaid.
On December 8, 2006, defendant moved for dismissal for failure to comply with the court’s discovery order.
Plaintiff opposed the motion. Plaintiff’s attorney had accepted the case from a predecessor law firm. In a declaration dated January 9, 2007, the day before the scheduled dismissal hearing, plaintiff’s counsel averred that when he received the case, the contact information for plaintiff was incorrect. The attorney was initially unable to locate plaintiff to secure her responses to discovery requests. Plaintiff’s attorney made “strong efforts” to locate her, however, and “very recently” he had reestablished contact with plaintiff. Counsel worked with plaintiff to prepare responses to the interrogatories, and to set an agreeable deposition date. The initial deposition date was “problematic” for plaintiff, and she was prevented from attending the second scheduled deposition because of disability and bad weather.
In addition, counsel’s declaration described personal hardships, including illnesses in his family, overwork, and the sudden necessity of moving his law office. Counsel further averred that, “[d]uring this time I have been in contact with the client and have completed her written discovery but which requires her final review and verification.” Counsel requested compassionate treatment from the court because of his personal hardships, represented that the requested “discovery is almost complete,” and proffered “the emergent circumstances set forth above” as an excuse for the lateness of his opposition papers.
The court “[split] the baby,” by granting the motion for dismissal, but making the dismissal without prejudice. It also awarded costs of $880 to the defense.
Plaintiff’s counsel prepared a declaration in April 2007 and motion papers in May 2007, requesting that the court vacate the dismissal or set aside the judgment. The papers were actually filed on July 9, 2007, exactly six months after the dismissal had been granted. Hearing on the motion was set for August 2007. The motion was assertedly made pursuant to Code of Civil Procedure section 473, subdivision (b), seeking mandatory vacation of a default caused by an attorney’s mistake, inadvertence, surprise or neglect. In the alternative, plaintiff requested the court to exercise its discretion under Code of Civil Procedure section 473, subdivision (b), to vacate the dismissal.
Counsel averred that in the fall of 2006, his daughter had become severely ill, and he had been obliged to advocate on her behalf to the medical care providers to expedite treatment. Counsel’s wife had also become ill. These events caused stress, fatigue and intermittent illness to counsel himself. Counsel repeated the averments of his earlier declaration, explaining that he had to unexpectedly relocate his law office in January 2007. Counsel suffered symptoms of heart disease for which he underwent extensive testing.
The declaration also raised other, new circumstances affecting counsel’s ability to devote proper attention to the matter: Someone had filed two legal actions under counsel’s name and state bar number, without his authorization. Disentanglement from these unauthorized proceedings resulted in several threats to counsel and his family.
With the motion to vacate the dismissal, plaintiff’s counsel averred that the long-awaited answers to interrogatories were attached, and represented that plaintiff was available for deposition at defendant’s convenience. Defendant points out here, however, that no such interrogatory answers were actually attached to plaintiff’s motion papers.
Defendant opposed the motion to vacate the dismissal and to set aside the judgment. Defense counsel argued that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), were inapplicable. The dismissal did not result from a proceeding akin to a default, and it was not wholly attributable to the conduct of counsel. Moreover, the court should not grant relief under the discretionary prong of Code of Civil Procedure section 473, because there was no showing of mistake, surprise, inadvertence or excusable neglect in plaintiff’s failure to provide interrogatory answers.
The court denied plaintiff’s motion to vacate the dismissal or set aside the judgment.
Plaintiff now appeals.
ANALYSIS
I. The Mandatory Relief Provisions Did Not Apply
Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)), “empowers a court to grant relief in appropriate cases from attorney error. The statute contains both mandatory and discretionary provisions.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1414 (Huh).) We treat the mandatory relief provisions first.
As the Huh court explained, “In certain cases of attorney fault, section 473(b) requires the trial court to grant relief. The mandatory relief provision states in pertinent 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 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 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 attorney’s mistake, inadvertence, surprise, or neglect.’ (§ 473(b).)” (Huh, supra, 158 Cal.App.4th at p. 1414.)
The procedural requirements are that the application for relief must be timely, it must be in proper form, it must be accompanied by an affidavit of counsel attesting to counsel’s mistake, inadvertence, surprise or neglect, and the moving party must adduce evidence to show that the default was actually caused by the attorney’s conduct. (Huh, supra, 158 Cal.App.4th at p. 1414.) “‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’” (Ibid.)
Plaintiff argues that she met the requirements for mandatory relief under section 473(b): Her application was timely (though barely so), it was proper in form, and her attorney attached a declaration claiming fault. Thus, she contends, the trial court erred in denying relief.
One major difficulty, however, is that, although plaintiff’s counsel did file an affidavit accompanying the motion for relief from the dismissal, the substantive claims of the affidavit did not demonstrate that the dismissal occurred because of counsel’s conduct. Plaintiff’s counsel repeated the averments made in his declaration in opposition to the discovery sanction motion, that he and his family members had suffered illness, stress and worry in the fall of 2006, and that he had had to move his law office unexpectedly. He repeated averments saying that he had been unable to contact plaintiff for a period of time. But none of these circumstances demonstrated, e.g., what efforts counsel had made to get in touch with plaintiff, when counsel had successfully restored communication with plaintiff, when counsel had informed plaintiff of the requested discovery, when counsel had sent the interrogatories to plaintiff or received the responses, and so on. As defendant’s moving papers on the sanction motion revealed, plaintiff’s counsel had represented in November 2006 that he had plaintiff’s responses in hand, and would soon mail them, but he in fact failed to do so. Plaintiff’s counsel’s affidavit in opposition to the sanctions motion repeated that he had plaintiff’s answers to interrogatories, but wanted her to review and verify them. No answers to interrogatories were served.
So far as the record indicates, none of counsel’s personal problems prevented the completion of discovery. In addition, the record bears the strong inference that it was plaintiff’s conduct, as much as counsel’s, which resulted in the failure to respond to discovery. Under such circumstances, the attorney’s affidavit did not establish that counsel’s conduct or error was the cause of the “default” or dismissal.
In addition, section 473(b) “does not apply to every situation where a dismissal occurs due to attorney misfeasance and section 473 relief is sought. [Citation.] The rationale for refusing to apply section 473 under such circumstances is, ‘[T]he Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissal statutes.’ [Citation.]” (In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1444.) Rather, it applies only in cases which amount to the equivalent of or in the nature of a default, where the party is prevented from appearing or having his or her day in court because of the attorney’s mistake, inadvertence, surprise or neglect. (Id. at p. 1443.)
Here, the dismissal did not result from circumstances comparable to a default. This was not a case in which the party was prevented from participating—i.e., filing her discovery responses, or appearing at the dismissal sanctions hearing—through misfeasance of counsel. The record does not present any impediment to plaintiff’s proper completion of discovery. Neither was she unable to participate in the sanctions hearing; indeed, counsel filed a declaration in opposition to the motion, the substance of which was considered by the court. The dismissal entered here was manifestly not the procedural equivalent of a default. Plaintiff clearly knew about the lawsuit, and about the propounded discovery, and no evidence addresses any reasons or excuses for her failure to provide timely responses. Counsel knew about, responded to, attended, and argued the motion for sanctions. That proceeding was not the equivalent of a default. Plaintiff’s attorney appeared, opposed, argued, and lost. The motion to vacate the dismissal effectively sought relitigation of the same ruling. Section 473(b) is not intended to provide a losing party a second bite at the apple; it applies narrowly to those instances where the party was prevented from appearing because of attorney misfeasance. (See Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1565-1566.)
Mandatory relief from default did not apply to the instant proceedings.
II. The Court Did Not Abuse Its Discretion in Denying the Motion to Vacate the Dismissal
Plaintiff argues that even if the court was not required to vacate the dismissal under the mandatory relief provisions, it should nevertheless have granted discretionary relief for mistake, inadvertence, surprise or excusable neglect.
The contention is without merit. The motion papers were devoid of any indication of plaintiff’s conduct, including any mistake, inadvertence, surprise or excusable neglect which prevented her from properly complying with the discovery orders. As the record stands, there is no explanation whatever for plaintiff’s failure to respond to discovery, or to comply with the court’s discovery orders.
In short, plaintiff’s case was not dismissed for something akin to default, and she provided no explanation at all for her own failure to act.
DISPOSITION
The trial court properly denied the motion to vacate the dismissal. Costs on appeal are awarded to defendant.
We concur: Gaut, J., King, J.