Lead Opinion
I
Appeal from orders made pursuant to section 473 of the Code of Civil Procedure,
This is the problem: Section 473 of the Code of Civil Procedure permits relief for “excusable” neglect. The word “excusable” means just that: inexcusable neglect prevents relief. (Luz v. Lopes (1960)
n
Involved in the proceedings we are about to discuss are Monica Denise Carroll, the mother and guardian ad litem of the minor plaintiff James Douglas Carroll, plaintiff’s legal representative (counsel) and defendant Abbott Laboratories, Inc. (Abbott).
On December 11, 1975, counsel, on behalf of James, filed a complaint against Abbott. It alleged that James, a minor, suffered brain damage when Monica, while pregnant with James, ingested Nembutal, a drug manufactured by Abbott.
In preparation for trial, Abbott served on counsel a notice requesting production of three sets of documents: (1) medical records concerning James’ treatment at the Seventh Day Adventist Hospital in Saigon, Vietnam; (2) medical records concerning James’ treatment at a military hospital in Vietnam; and (3) a “baby book” kept by Monica that detailed James’ first eight years. The
On January 29, counsel filed a motion for relief from the dismissal under Code of Civil Procedure section 473. In his declaration, he asserted that none of the requested documents were in his or Monica’s possession. He also admitted that he had not been in touch with his client since July 23, 1979. Counsel did appear at a February 14 hearing and urged his own motion. The trial court granted the motion to vacate the dismissal on condition that counsel and Monica file declarations stating that they did not know the whereabouts of the requested documents. When they failed to fulfill that condition, the motion to vacate the dismissal was taken off calendar.
Counsel filed a second motion for relief under section 473 on April 3, 1980. In his newest declaration, he asserted that on February 15 he had been informed by Monica that she did, after all, possess the requested documents. In fact, Monica told counsel that at one point between July and August 1979, she had actually turned the documents over to him. Counsel asserted, however, that some time thereafter his office returned the documents to Monica, though he himself had “no recollection of this rather disturbing event.” Counsel’s declaration in support of the motion also contains certain allegations which, if believed, might have supported a finding that the January 24 dismissal had been the result of a mistake induced by certain representations of Abbott’s attorney. The allegations were denied by the latter.
III
It is well established that “ ‘a motion for relief under [Code of Civil Procedure] section 473 is addressed to the sound discretion of the trial court and in
In general, 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.” (Buckert v. Briggs (1971)
However, an exception to this general rule has developed. “[E]xcepted from the rule are those instances where the attorney’s neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. [Citations omitted.] The exception is premised upon the concept the attorney’s conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client. ” (Italics added.) (Buckert v. Briggs, supra, at p. 301; see also, Orange Empire Nat. Bank v. Kirk, supra, at p. 353; Daley v. County of Butte (1964)
In spite of half-hearted attempts to argue that his counsel’s neglect was excusable, plaintiff appears to appreciate that his best hope for an affirmance lies in resort to the Daley line of cases; he is, after all, saddled with an amply supported if not compelled trial court finding that counsel’s neglect was “gross.” The issue, therefore, becomes whether counsel’s conduct amounted to
A brief look at the factual circumstances in the cases that fall within the “positive misconduct” exception will make it clear that plaintiffs hopes are misplaced. In Daley, plaintiffs attorney failed to serve plaintiff’s son in order to join him as a party, which resulted in repeated postponement of trial. He failed to appear at successive pretrial conferences and failed to communicate with court, client or other counsel. Worst of all, he did not sign a substitution of attorney for more than five months, apparently refusing either to get out of the case or to proceed with it. Given all these circumstances, the court concluded that plaintiff “had legal representation only in a nominal and technical sense.” (Daley v. County of Butte, supra,
In Orange Empire the attorney, whose client was sued on a guaranty, repeatedly assured the client that he would interpose the defense that the client’s signature on the guaranty was a forgery. The attorney failed to file an appearance in the case, and despite advance notice of the trial date, he failed to appear for trial which resulted in a substantial judgment. Throughout this period, the attorney had been contacted many times by his client and had continued to assure him that he was taking care of the case and would take care of the trial. The court focused also on the attorney’s failure to file for relief from the judgment within the statutory period, despite his continuing assurances to the client that remedial action would be taken. The client finally sought other counsel after he learned, from his own inquiries, that his original attorney had failed to take any action with respect to the judgment.
Finally, in Buckert, the attorney in question failed to notify plaintiffs regarding a new trial date, despite specific promises that he would do so, and did not himself appear at the trial on behalf of plaintiffs. When one of the plaintiffs learned that the trial had taken place, he immediately contacted the attorney who said he thought plaintiffs had lost interest in the case. (None of the plaintiffs had so indicated. In fact, they had requested that the matter be tried as soon as possible.) The attorney told the plaintiff he would seek to have the judgment set aside, and would keep plaintiffs informed of his progress. The attorney did neither and in fact never contacted plaintiffs again. One of the plaintiffs finally wrote to the presiding judge in the case, who informed him of the possibility of relief under section 473. Plaintiffs then obtained the services of another attorney to seek such relief on their behalf. The court concluded that the evidence demonstrated the original attorney was in fact not representing plaintiffs, and indicated that the “[attorney] regarded the attorney-client relationship ... to be nonexistent and [that the attorney had a] preconceived intention not to act on their behalf.” (Buckert, supra,
“The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. [Fn. omitted.] When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969)
Finally, plaintiff claims that Abbott was not prejudiced by the delay in furnishing the requested documents. We assume for the purpose of argument that this is so. We have, however, found no case which permits the setting aside of a judgment in spite of inexcusable neglect, simply because the other side has not been prejudiced. (See generally In re Marriage of Park (1980)
In sum, since the record fails to show the kind of de facto severance of the attorney-client relationship which is necessary to bring the Daley doctrine into play, the section 473 relief should not have been granted.
Reversed.
Mosk, J., Richardson, J., Newman, J., Broussard, J., and Reynoso, J., concurred.
Notes
Section 473 provides in pertinent part: “The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. . . .”
Abbott also sought to compel answers to certain interrogatories. However, since both the later dismissal and vacation of dismissal involved only the production of the documents, our discussion focuses solely on that aspect of Abbott’s efforts at discovery.
The court’s eventual finding that counsel had been grossly negligent implies that the factual conflict was resolved against plaintiff.
“The matter having been submitted and, after due consideration of the plaintiff’s declarations in support of its motion to be relieved from a judgment of dismissal, the court finds and rules as follows: The court finds that the plaintiff’s counsel has been grossly negligent in his representa
“The sanctions imposed under Code of Civil Procedure, Section 2034, Subdivisions (b) and (d) must be appropriate to the dereliction and must be just.
“The purpose of the discovery statutes is to enable a party to obtain evidence under the control of his adversary in order to further the efficient and economical disposition of a lawsuit. (Caryl Richards, Inc. vs. Superior Court, supra,
“The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause. (Stein v. Hassen, supra,
“The motion is granted on condition that:
“1. Plaintiff’s counsel pay defendant’s counsel additional fees in the sum of $750.00 within 20 days of service of order. This sum is in addition to the $500.00 ordered on February 14, 1980. The latter sum is likewise to be paid within 20 days for a total payment of $1350.00.
“2. That plaintiff file verified answers to interrogatories within 20 days.
“3. That plaintiff produce documents as requested within 20 days.
“4. Plaintiff’s counsel shall file with the court a declaration stating that there has been compliance with the terms of this order within 25 days of the order.
“5. The plaintiff shall make no motion to set for trial until compliance with the order is made.
“6. The order of February 14, 1980, is vacated only so far as it limits the plaintiff’s production of evidence per CCP 2034 (B)(2)(h).
“7. The matter is set for compliance review in Department 84 on June 25, 1980. Compliance may be established by plaintiff’s declaration.”
While this may be sound discovery law, its application was ill-timed. A motion under section 473 of the Code of Civil Procedure “was never intended as a substitute for an appeal.” (Hagan v. Mund’s Boilers, Inc. (1950)
The record reveals considerable controversy on the question whether plaintiff had really complied with the conditions of the May 23 order. It is a fact that Monica never did produce the records of the Seventh Day Adventist Hospital. The trial court found—too charitably, perhaps—that she had produced all the records that were “in existence.”
From the client’s point of view relief under section 473 is, of course, much faster than a malpractice judgment several years down the road. Realistically, however, the mere threat of malpractice liability brings another purse into the settlement negotiations and may thus actually further a speedy disposition.
Weitz also disposes of the dissent’s suggestion that even if counsel’s inexcusable neglect bars relief under section 473, the order should nonetheless be upheld as a proper exercise of the court’s inherent equitable power. “To the extent that the court’s equity power to grant relief differs from its power under section 473, the equity power must be considered narrower, not wider. (See Wattson v. Dillon, 6 Cal.2d 33, 42 [
Reprinted due to erratum. See
Dissenting Opinion
I respectfully dissent.
In the name of the “ ‘orderly process of the law,’ ” the majority today hold that a trial court may not grant relief to a plaintiff whose lawsuit was dismissed because of the “ ‘grossly negligent’ ” conduct of his attorney. (Maj. opn., ante at pp. 897-900.) In reaching that conclusion, the majority overlook an important source of judicial power, disregard the public policy which favors the determination of all causes on their merits, and fail to give deference to the trial court’s decision. The end result cannot fairly be said to serve the interests of “substantial justice.” (Daley v. County of Butte (1964)
As the majority note, the discretion of a trial court to grant relief from dismissals is not “ ‘ “a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law . . . (Maj. opn., ante at p. 898.) But the majority err in assuming that section 473 of the Code of Civil Procedure is the only “law” which gives trial courts authority to grant such relief.
California courts have an “inherent equity power under which, aside from [their] statutory authority, [they may] grant relief from a . . . judgment ....
As this court recently noted, “A final judgment may be set aside by a court if it has been established that extrinsic factors have prevented one party to the litigation from presenting his or her case. [Citation.] The grounds for such equitable relief are commonly stated as being extrinsic fraud or mistake. However, those terms are given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense. [Citations.]” (In re Marriage of Park (1980)
Thus, apart from its discretion under section 473, a court has considerable and broad discretion in equity to grant relief from a judgment on a showing of extrinsic fraud or mistake. Under its equitable jurisdiction, then, a court may provide relief in many situations other than those set forth in the statute.
“Although the law ordinarily charges the client with the inexcusable neglect of his attorney, . . . there are exceptional cases in which the client who is relatively free from personal neglect will be relieved from a default or dismissal attributable to the inaction or procrastination of his counsel. [Citations.] This is particularly true where the attorney’s failure to represent the client amounts to positive misconduct. [Citation.] An attorney’s authority to bind his client does not permit him to impair or destroy the client’s cause of action or defense. [Citation.]” (Orange Empire Nat. Bank v. Kirk, supra,
If the attorney’s negligence is clear and inexcusable, the focus of inquiry in deciding whether to grant relief shifts to the client. (Orange Empire Nat. Bank v. Kirk, supra, 259 Cal.App.2d at p. 353; see Conway v. Municipal Court (1980)
The majority attempt to distinguish the case at hand from Orange Empire and other cases granting relief in similar circumstances, but that attempt is not convincing. The distinction between one attorney’s “positive misconduct” and another’s “gross negligence” is, at best, elusive; the factual circumstances of the two cases are simply not as dissimilar as the majority claim. In Orange Empire, the court concluded that a plaintiff had been “unknowingly deprived of effective representation by counsel’s failure to serve process, to appear at the pretrial conference, [or] to communicate with the court, client, and other counsel . . . .” (Orange Empire Nat. Bank v. Kirk, supra,
What is more, finely drawn distinctions between the facts of this case and others are not appropriate here. The rule of Orange Empire is not, as the majority contend, a judically created exception to a statute which must, therefore, be “narrowly applied.” (See maj. opn., ante at p. 900.) Rather, the rule is grounded in the court’s broad and “inherent equity power” (Weitz v. Yankosky, supra,
The majority override these usually controlling principles, and declare the trial court’s order an abuse of discretion, in the interest of the “ ‘orderly process of the law.’ ” (Maj. opn., ante at p. 900.) Certainly courts have an interest in ensuring the prompt and orderly disposition of lawsuits. Although the “ [defendant is entitled to the weight of the policy underlying the dismissal statute, which seeks to prevent unreasonable delays in litigation [, that] policy ... is less powerful than that which seeks to dispose of litigation on the merits rather than on procedural grounds.” (Daley v. County of Butte, supra,
Moreover, it is not necessary to so drastically limit the trial court’s discretion in order to preserve the orderly process of the law. The interests of other parties and of justice are more than adequately protected by existing safeguards. (See generally 5 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, §§ 192, 194, pp. 3763, 3765-3766.) A motion addressed to a court’s equity power is, of course, vulnerable to equitable defenses such as laches. (Olivera v. Grace, supra,
To recover in a malpractice action, “a client must show that but for his attorney’s negligence he would have been successful in the original litigation . . . .” (Note, Attorney Malpractice (1963) 63 Colum.L.Rev. 1292, 1307, fn. omitted.) “Few malpractice litigants seem able to survive this ‘trial within a trial.’” (Mazor, supra, 20 Stan.L.Rev. at p. 1135, fn. omitted.) Obviously, this burden is “especially difficult to meet when the attorney’s conduct prevented the client from bringing his original cause of action .... Moreover, a client whose original claim was dismissed must, in order to establish the extent of his damages, prove the amount of the judgment that he would have recovered had his attorney not been negligent.” (Note, Attorney Malpractice, supra, 63 Colum.L.Rev. at pp. 1307-1308, fns. omitted.) These difficulties make the outcome of malpractice actions in cases like this far from certain. They are a poor substitute for equitable relief.
Certainly, courts have an interest in preventing attorneys from rising to “ever greater heights of incompetence and professional irresponsibility” (maj. opn., ante, at p. 900), but that interest cannot be allowed to override the court’s fundamental responsibility to do justice. Existing law is more than sufficient to protect the interests asserted by the majority. Thus, their disregard of the general principles favoring affirmance in this case is not justified. The trial court’s broad equitable discretion and the deference it is entitled to from appellate courts make the majority’s reversal of its judgment inappropriate. I would affirm the judgment.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
The majority err in asserting that, as a general matter, a court’s equity power is “narrower” than its statutory power. (See maj. opn., ante at p. 901, fn. 8.) The majority’s position, that relief in equity may not be granted if relief could not have been granted under section 473, is not supported by logic or law.
First, the power of the equity court to set aside a judgment based on the lack of a “fair adversary hearing” is “inherent” in that court. (Weitz v. Yankosky, supra,
Moreover, the basis for relief in equity differs substantially from the basis for relief under the statute. Under section 473, the party seeking relief must show “mistake, inadvertence, surprise, or excusable neglect” in order to succeed. By contrast, to obtain relief in equity, a party must show “extrinsic circumstances which deprive[d] [that] party of a fair adversary hearing.” (In re Marriage of Park, supra,
What is more, the authority cited by the majority simply does not support their position. In Weitz v. Yankosky, supra,
When read in its proper context, it is apparent that this last sentence—cited by the majority as a general limitation on the equity power of the court—refers only to the applicability of the “reasonable time” requirement to an action for equitable relief.
Nor does the Weitz court’s citation of Wattson v. Dillon (1936)
In fact, one of the three cases cited by the majority as an exception to section 473 was actually decided under the court’s equitable power. (See Orange Empire Nat. Bank v. Kirk (1968)
The motion and affidavit filed by the plaintiff, although phrased in terms of section 473, also state a claim for equitable relief. Consistent with that claim, the trial court found that plaintiffs counsel had been “grossly negligent” and that “plaintiff-was not contacted at relevant times.” The court did not specifically refer to its equitable power when it announced its decision to grant relief. However, since that decision was clearly within the equitable power of the court to make