Opinion
D040669.
7-29-2003
JANICE ROSA, Plaintiff and Appellant, v. EL PORTAL GROUP et al., Defendants and Respondents.
Plaintiff Janice Rosa appeals a post-judgment order denying her Code of Civil Procedure section 473 motion to vacate and set aside a summary judgment entered in favor of defendants El Portal Group, Wilsons Leather Holdings, Ed Borsack and Phyllis Giles. Rosa contends the court prejudicially erred in denying the motion because (1) her former attorneys representation in opposing defendants summary judgment motion was so deficient that it effectively abrogated the attorney-client relationship, warranting mandatory section 473 relief; (2) her former attorneys failure to propound discovery in the underlying action amounted to positive misconduct justifying discretionary relief under section 473; and (3) the declarations attached to her motion seeking section 473 relief established a triable issue sufficient to deny summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, Rosa, represented by attorney Theresa Erickson, sued her former employer El Portal Luggage and other individuals and entities for defamation, breach of implied contract, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress, stemming from the termination of her employment with El Portal Luggage. Erickson appeared at case management conferences, a mediation, and served written discovery responses on Rosas behalf.
In December 2001, defendants moved for summary judgment and alternatively summary adjudication of issues. Erickson timely filed points and authorities, an opposing separate statement, and her own, as well as Rosas, declaration in opposition to the motion. Although Rosa largely admitted the facts set forth in defendants papers, she argued defendants failed to meet their burden of proof on the motion, and, referring to paragraphs of her complaint, further maintained she could produce evidence raising triable issues of fact if she were permitted to complete discovery. Rosa requested the court deny the motion or alternatively grant her a continuance on the ground she was "certain that outstanding discovery exists to resist this motion." In accompanying declarations, both Erickson and Rosa averred Rosas financial failings stemming from unemployment and bankruptcy prevented her from financing the discovery necessary to prove her case, and Rosa averred she was in process of obtaining a personal loan for that purpose.
In January 2002, the court heard arguments on the motion. Erickson appeared and argued on Rosas behalf. On February 6, 2002, Rosa filed a substitution of attorney form assuming representation in propria persona and substituting Erickson out of the case. Thereafter, the court granted summary judgment in defendants favor and entered judgment accordingly.
In May 2002, Rosa moved to vacate the judgment under section 473 on the grounds Erickson was so grossly negligent in her representation that Rosa was effectively deprived of any legal representation. In support, Rosa submitted declarations from two witnesses and a psychiatrist, letters she had received from Erickson regarding her case, and Ericksons declaration submitted in opposition to defendants summary judgment motion. Rosa also submitted her own declaration in which she averred she signed the substitution of attorney form only after Erickson refused to return Rosas case file unless she signed and filed the document, and that thereafter, she learned Erickson had conducted no discovery on her behalf. Rosa did not submit a declaration from Erickson attesting to any mistake, inadvertence or excusable neglect; Rosa averred she had unsuccessfully requested Erickson provide her with such a declaration.
The court denied the motion. It ruled (1) section 473s mandatory relief provisions do not apply to set aside a judgment entered following a contested summary judgment hearing; (2) the sections discretionary relief provisions do not apply because Rosa did not provide an attorney declaration attesting to mistake, inadvertence, surprise or neglect or accompany the motion with pleadings or evidence sufficient to deny summary judgment; and (3) Rosa did not demonstrate gross neglect by Erickson effectively abrogating the attorney-client relationship. Rosa appeals.
DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Denying Rosas Section 473 Motion to Vacate the Judgment
Rosa contends the court erred by denying her motion to set aside or vacate the summary judgment. She maintains the court misapplied both the mandatory and discretionary relief provisions of section 473 because Ericksons conduct in failing to propound discovery and misrepresenting the status of discovery was tantamount to client abandonment or positive misconduct, justifying relief under both provisions. Rosa further contends the witness declarations submitted to the court provided adequate grounds to support her claim of slander per se and demonstrated malice sufficient to defeat any qualified privilege. " Our review of this issue is guided by familiar principles which require that we indulge all legitimate and reasonable inferences to uphold the judgment and reverse only upon a showing that the trial court exceeded the bounds of reason in light of all the circumstances. [Citations.] On matters of credibility, we defer to the trial court. " (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 7, quoting Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44-45.)
Section 473, subdivision (b) grants a court discretion "upon any terms as may be just, " to "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." (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254 (Zamora).) Under a separate, mandatory provision of the 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 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); Gotschall v. Daley (2002) 96 Cal.App.4th 479, 482-483; Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 926.) We review a decision denying a section 473 motion for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 884 P.2d 126.)
A. Mandatory Relief
The purpose of the mandatory relief provision of section 473 " was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. " (Zamora, supra, 28 Cal.4th at p. 257.) It is a "narrow exception to the discretionary relief provision for default judgments and dismissals." (Ibid.)
The court properly denied Rosa mandatory relief under section 473. Rosa plainly had her day in court. (Cf. Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398 [bank appeared at evidentiary hearing on a third-party claim and offered evidence in an attempt to meet its burden of proof; the fact evidence was insufficient to prevail does not bring case within mandatory relief provision of section 473].) But even if we were to assume the courts grant of summary judgment was the equivalent of a dismissal or default under the statute, (see English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 137-138, 143-149 [section 473 permits mandatory relief from a default or dismissal, not to relief from a summary judgment], compare Avila v. Chua (1997) 57 Cal.App.4th 860, 868 [failure to timely file oppositions to summary judgment analogous to a default judgment]), Rosa did not provide an affidavit from Erickson attesting to her mistake, inadvertence, surprise, or neglect as the statute requires. Rosa nevertheless maintains her attorneys refusal to provide an affidavit should not prevent a court from granting her mandatory relief, because her counsels representation amounted to client abandonment or gross negligence. She is incorrect. Rosas cited cases (Orange Empire Nat. Bank v. Kirk (1968) 259 Cal. App. 2d 347, 66 Cal. Rptr. 240, Buckert v. Briggs (1971) 15 Cal. App. 3d 296, 93 Cal. Rptr. 61, Daley v. County of Butte (1964) 227 Cal. App. 2d 380, 38 Cal. Rptr. 693) were decided before the Legislature added the mandatory relief provision of section 473 to the statute. (Stats.1988, ch. 1131, § 1, p. 3631.) We do not apply these cases to permit mandatory relief where Rosa has failed to meet express requirements of section 473.
B. Discretionary Relief
Under the discretionary relief provision of section 473, the court may grant relief if the moving party shows an order was taken against him or her because of the attorneys excusable neglect. (§ 473.) " A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. " (Zamora, supra, 28 Cal.4th at p. 258.) Conduct falling below the professional standard of care is considered inexcusable and consequently discretionary relief cannot be granted based on such conduct. (Ibid.; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895, 187 Cal. Rptr. 592, 654 P.2d 775 (Carroll); Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)
Rosa asked the trial court to invoke a judicially created exception to these rules arising where the client establishes the attorneys neglect was of an extreme degree amounting to " positive misconduct. " (Carroll, supra, 32 Cal.3d at pp. 898-899; see Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 72-73.) " Positive misconduct is found where there is a total failure on the part of counsel to represent his client. " (People v. One Parcel of Land (1991) 235 Cal. App. 3d 579, 584, 286 Cal. Rptr. 739, quoting Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal. App. 3d 725, 738-739, 216 Cal. Rptr. 300.) The attorneys conduct is said to obliterate the existence of the attorney-client relationship and therefore cannot be imputed to the client. (Carroll , supra, 32 Cal.3d at p. 898.) Rosa contends Ericksons failure to conduct discovery and her misrepresentation to both Rosa and the court that discovery could not proceed due to Rosas financial condition constitute attorney abandonment and positive misconduct. Rosa maintains as a result of Ericksons conduct, she was effectively and unknowingly deprived of representation.
We conclude the trial court did not abuse its discretion in denying discretionary relief. Rosas claim of client abandonment is contradicted by the record, which shows Erickson took actions on Rosas behalf during the pendency of the lawsuit; she attended a case management conference and a mediation, served discovery responses on Rosas behalf, prepared opposing summary judgment papers and appeared at the summary judgment hearing. In Carroll, the court held an attorney who "grossly mishandled" a document production did not engage in " positive misconduct "because he otherwise acted on behalf of his client in the litigation including attending his clients deposition, propounding and timely responding to interrogatories, propounding requests for admissions, settling with one of the defendants, and timely filing a section 473 motion. (Carroll, supra, 32 Cal.3d at pp. 899-900.) Here, as in Carroll, Ericksons asserted failure to obtain discovery for opposing summary judgement did not amount to a total failure to represent Rosa. Nor does the record support a finding that Erickson misrepresented Rosas financial condition to both her client and the court; the record contains Rosas own sworn declaration attesting to the same facts; There is no basis in the record to conclude Rosa was unaware of the contents of that declaration when she signed it. Rosa was not effectively or unknowingly deprived of representation, and the cases upon which she relies are plainly distinguishable on their facts. (Daley v. County of Butte, supra, 227 Cal. App. 2d at pp. 391-392 [plaintiffs attorney abandoned his client by failing to communicate with the plaintiff, serve necessary parties, and appear at critical hearings]; Orange Empire Nat. Bank v. Kirk, supra, 259 Cal. App. 2d at p. 354 [defendants attorney failed to assert a defense, appear at the trial, or file relief from a default judgment within the statutory period].)
Having failed to establish Ericksons conduct was so inexcusable as to fall within the narrow abandonment exception (Carroll, supra, 32 Cal.3d at p. 900), Rosa did not establish the excusable neglect prong for purposes of discretionary dismissal under section 473, and the courts ruling denying such relief was well within its discretion. Given our holding, we need not reach whether the documents Rosa submitted with her section 473 motion met the statutes requirements or raise a triable issue of fact sufficient to deny summary judgment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J. --------------- Notes: All statutory references are to the Code of Civil Procedure unless otherwise indicated.