MICHAEL YOUNESSI et al., Plaintiffs and Respondents, v. CHAIM J. WOOLF et al., Defendants and Appellants.
No. G051034
Fourth Dist., Div. Three
Feb. 16, 2016
1137
Baker, Keener & Nahra, Mitchell F. Mulbarger and Ashley L. Arnett for Defendant and Appellant Chaim J. Woolf.
Nemecek & Cole, Jonathan B. Cole and Mark Schaeffer for Defendant and Appellant Steven K. Camhi.
Clifford Casey; Byron & Edwards and Thomas W. Byron for Plaintiffs and Respondents.
OPINION
RYLAARSDAM, Acting P. J.—Defendants Chaim J. Woolf and Steven K. Camhi appeal from an order granting plaintiffs’ motion to set aside the dismissal of a legal malpractice action. (
We deny plaintiffs’ motions. The dismissal was in writing and signed by the trial court (
But we reluctantly affirm the trial court‘s order vacating the dismissal. While the evidence does not support granting relief for mistake, inadvertence, surprise, or excusable neglect, since the dismissal resulted from plaintiffs’
FACTS AND PROCEDURAL BACKGROUND
Defendants Camhi, Woolf, and Ronan Cohen are attorneys who represented plaintiffs in a prior civil action. That case resulted in a large judgment against plaintiffs. We affirmed the judgment in a prior appeal. (Diamond Enterprises, Ltd., LP. v. Younessi (Jan. 16, 2015, G048000) [nonpub. opn.].)
Represented by Attorney Robert E. Drescher, plaintiffs sued defendants, alleging the judgment in the Diamond Enterprises action resulted from their failure to effectively represent them. Defendants separately demurred to the complaint and Camhi and Woolf also moved to strike portions of it. By stipulation, the trial court scheduled a consolidated hearing on the demurrers and motions for May 7, 2014. The court also set a case management conference on May 29.
Meanwhile, Camhi and Woolf served discovery requests on plaintiffs. Neither defendant received a response and each one filed a motion to compel compliance.
No opposition was filed to the demurrers or motions to strike. On May 1, Camhi served and filed a notice that he had not received any opposition to either his demurrer or motion to strike. Drescher also did not appear at the May 7 hearing. The trial court sustained the demurrers to each cause of action with 10 days’ leave to amend. Camhi served notice of the ruling on all parties the same day.
The amended complaint was due May 22. At 11:55 p.m. that day, Attorney George Wass electronically filed a substitution of attorney, replacing Drescher as plaintiffs’ attorney of record. The substitution of attorney form reflects Drescher signed it on March 31, but Wass did not sign it until May 20. Despite an attached proof of service showing Wass mailed copies of the document to each of the defendants, Camhi and Woolf denied knowing of the change of attorney until they received plaintiffs’ motion to set aside the dismissal.
On May 27, Camhi filed an ex parte application to dismiss the action because plaintiffs failed to timely file an amended complaint. The register of actions reflects the trial court heard the application on the morning of May 28 and granted it, signing an order dismissing the complaint with prejudice as to all three defendants. The record reflects that Wass electronically filed an
On July 17, plaintiffs moved to set aside the dismissal. The motion sought relief under
According to Wass, in March he agreed to represent plaintiffs in this action. Wass admitted that he received the substitution of attorney form signed by Drescher on April 1, but claimed he forgot to sign it because he was preparing for trial.
Wass denied knowing about the pending demurrers and motions to strike, asserting, “Drescher did not mention [them],” and his office “apparently missed” the entries for these pleadings when reviewing the register of actions. But Wass did acknowledge learning of the pending discovery motions. In mid-April, he attempted to discuss them with Woolf‘s attorney. Opposing counsel told Wass that he could not do so “until he received the Substitution of Attorney.” According to Wass, he again failed to file the substitution of attorney because he “got distracted.” Wass claimed he finally learned about the demurrers and the court‘s ruling that allowed leave to amend in mid-May, and “just assumed we got 30 days” to file an amended complaint.
Wass appeared on May 29 for the case management conference. At that time, he learned “the case had already been called, and was Dismissed.” Wass acknowledged he was “at fault for not timely filing the First Amended Complaint.”
All three defendants opposed the motion, but the court granted it. When asked the basis for the ruling, the trial judge stated she relied on section 473, subdivision (b)‘s “discretionary” provision.
DISCUSSION
1. Motion to Dismiss Appeal
Plaintiffs have moved to dismiss this appeal on the ground the order vacating the dismissal of the action is not an appealable ruling. Their motion lacks merit.
The trial court dismissed this action in a written order signed by it. Thus, the ruling was an appealable judgment, and the order granting plaintiffs’ motion to set it aside under section 473 was appealable as one “made after a judgment.” (
2. Motions for Relief from Default and for Judicial Notice
The motion for relief from default in failing to timely file a respondents’ brief conforms to a familiar theme in this case: plaintiffs’ representation by attorneys who have difficulty timely filing documents.
Respondents’ appellate brief was due on or about May 5, 2015. No brief was filed, nor was there a request for additional time to submit one.
On December 4, plaintiffs filed the present motion. It is supported by declarations from Younessi and Clifford Casey, one of plaintiffs’ current attorneys, and documents attached to the related motion for judicial notice. Plaintiffs’ argument is premised on a purportedly unfulfilled promise by Wass to prepare the brief.
Younessi claims that on August 21, 2015, he learned Wass had failed to timely file the respondents’ brief. He immediately confronted Wass about the default. Casey acknowledges he was present at the August 21 meeting and that Wass admitted failing to timely file the respondents’ brief.
One month later, on September 18, Casey substituted into the case as plaintiffs’ attorney of record. The same day, Casey filed the motion to dismiss this appeal under his own signature. But according to Casey, Wass actually prepared the motion. Casey also acknowledges he waited over six weeks for Wass to prepare the respondents’ brief, which, “despite . . . repeated promises,” Wass failed to fulfill.
Another two weeks passed before plaintiffs hired Attorney Thomas W. Byron who prepared the current motion for relief from default. The motion and its supporting declarations were signed on or before November 19. While the attached proof of service states the motion was mailed to this court and
This court has the discretion to grant relief from a party‘s failure to timely file a brief “[f]or good cause.” (
Under these circumstances good cause for relief has not been shown and we deny both the motion for relief from default to file respondents’ brief and the motion for judicial notice.
3. Order Granting Motion to Vacate the Judgment
3.1 Discretionary Relief
Camhi and Woolf contend the trial court erred in granting relief under the discretionary prong. We agree the trial court‘s reliance on this basis constituted an abuse of its discretion.
First, plaintiffs’ motion failed to show they timely sought relief from the dismissal. The motion must “be made within a reasonable time” after the
Wass acknowledged that he learned of the dismissal on May 29, the day after the trial court entered it. But he did not file the motion to vacate the dismissal until seven weeks later. The moving papers do not provide a reason for the delay in seeking relief. “‘[W]hat is a reasonable time in any case depends upon the circumstances of that particular case‘” (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d at p. 528), and “[w]hether a party has acted diligently is a factual question for the trial court” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420 [71 Cal.Rptr.3d 65]). “While in ‘the determination of that question, a large discretion is necessarily confided to [the trial] court’ [citation], there must be some showing—some evidence—as the basis for the exercise of such discretion.” (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d at p. 528.) Given the absence of evidence explaining the seven-week delay in seeking to set aside the dismissal, the diligence requirement was not satisfied.
Second, Camhi and Woolf also correctly assert plaintiffs failed to provide evidence supporting a finding of excusable mistake, inadvertence, or neglect. They cite the absence of a declaration from Drescher explaining his inaction in response to the notices of nonopposition and the ruling on the demurrers that Camhi served on him. As for Wass‘s declaration, defendants argue it reflects only inexcusable inaction on his part. We agree with these contentions.
Wass did not appear as plaintiffs’ attorney of record until late on May 22, the last day on which to timely file an amended complaint. Before he filed the substitution of attorney, Drescher remained plaintiffs’ counsel of record. Plaintiffs did not submit a declaration from Drescher explaining why he failed to take action.
In his declaration, Wass suggests Drescher probably “believe[d] he was out of the case as soon as he signed and returned [the substitution of attorney] to me.” But
Nor could plaintiffs rely on Wass‘s declaration to support granting discretionary relief.
Wass acknowledged promptly receiving the substitution of attorney from Drescher, but “forgot” to sign it or “got distracted,” even though opposing counsel refused to discuss the case with him until he filed and served the substitution form. As for not knowing about the demurrers, Wass conclusorily claimed his office presumably “missed” them. He admits that he later learned of the court‘s ruling on the demurrers, but does not explain how or in what manner he discovered this information. Further, contrary to the
Under the circumstances of this case, we conclude the evidence fails to support setting aside the dismissal of this action under
3.2 Attorney Fault
The second ground for relief under
The trial court relied on the discretionary provision in granting plaintiffs’ motion to set aside the dismissal. But a “judgment or order forming the basis of the appeal is presumed to be correct,” and if it “is correct on any theory, then it must be affirmed regardless of the trial court‘s reasoning, whether such basis was actually invoked.” (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1201 [142 Cal.Rptr.3d 312]; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [35 Cal.Rptr.2d 669, 884 P.2d 126]; Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451 [125 Cal.Rptr.2d 277].) Consequently, “‘we will not consider the court‘s oral comments or use them to undermine the order ultimately entered.‘” (Hoover v. American Income Life Ins. Co., supra, 206 Cal.App.4th at p. 1201.)
Unlike the discretionary ground for relief, a motion based on attorney fault need not show diligence in seeking relief. The motion is timely if filed within six months of the entry of the default judgment or dismissal. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868 [62 Cal.Rptr.2d 98] [
Defendants rely on case law declaring the mandatory attorney-fault provision was not intended “‘“as a ‘perfect escape hatch’ [citations] to undo dismissals of civil cases“‘” (Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967 [18 Cal.Rptr.3d 921]), and thus “a plaintiff may obtain mandatory relief under
But the cases have recognized the mandatory attorney-fault provision “may be reconciled with the discretionary dismissal statutes . . . if limited to those dismissals which are the procedural equivalent of defaults—i.e., those which occur because the plaintiff‘s attorney has failed to oppose a dismissal motion.” (Bernasconi Commercial Real Estate v. St. Joseph‘s Regional Healthcare System, supra, 57 Cal.App.4th at p. 1082.) Thus in Leader, the appellate court limited its holding to “where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion.” (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 620.)
Here, defendants did not file a motion to dismiss the case. Rather, the dismissal resulted from an order granting Camhi‘s ex parte application for entry of a dismissal, without any opposition from plaintiffs that would allow the trial court to evaluate why they had failed to timely file an amended complaint. Consequently, the dismissal was the procedural equivalent of a
DISPOSITION
The motions to dismiss the appeal, for relief from default in failing to file a respondents’ brief, and for judicial notice are denied. The order vacating the judgment of dismissal is affirmed and the matter is remanded to the superior court with directions to set a hearing on the amount of legal fees and costs appellants are entitled to recover from Attorney George Wass. The parties shall bear their own costs on appeal.
Moore, J., and Aronson, J., concurred.