Friday, March 20, 2015

On the Dangers of Finding a Cite and Calling It Quits

Rodriguez v. Brill, No. F068518 (D5 Feb. 20, 2015)

This case touches on what, to me, is one of the most significant questions of practical appellate jurisprudence: In issuing a reasoned decision, what is the court’s obligation to independently research issues that are presented by the parties, but not thoroughly briefed? (Or, for that matter, issues that appear to be thoroughly briefed, but aren’t.)

In the underlying palimony case here, the court ordered plaintiff to respond to some requests for admission. She nonetheless did not provide substantive responses. So the trial court struck the complaint as a terminating sanction for discovery misconduct. 

Plaintiff filed a notice of appeal. Shortly thereafter, she unsuccessfully moved to vacate the trial court’s ruling under Code of Civil Procedure § 437(b). In an unpublished decision two years ago, the court held that the sanction of dismissal was within the discretion of the trial court, but it shouldn’t have reached the § 473(b) issue, because the notice of appeal divested it of jurisdiction to resolve it. On remand, the trial court tersely denied § 437(b) relief for a second time. Plaintiff appealed again.

Section 473(b) affords two kinds of relief for a party who screws up: Mandatory and discretionary. Discretionary relief is just that, discretionary. It gives the court some leeway to forgive excusable neglect and other mistakes that get in the way of the policy that favors resolution on the merits. It is, like Federal Rule 60, a creature of equity, and generally applies in any situation—other than jurisdictional requirements—where a court sees it fit to afford a party a mulligan. 

Mandatory relief, on the other hand, is powerful stuff. It applies only to the mistake of a party’s attorney, and it requires the court to effectively cancel a judgment if the statutory conditions are met. Given that, and the availability of discretionary relief as a backstop, courts read the conditions quite narrowly.
The statute generally provides: 

1. That mandatory relief applies only to a “default judgment or dismissal”;

2. That the application be made within six months of entry of judgment; 

3. That the application be made in “proper form”; 

4. That the application be accompanied by the attorney’s own sworn affidavit attesting that the default or dismissal was due to the attorney’s “mistake, inadvertence, surprise, or neglect”; in common parlance, the attorney must “fall on his sword”;

5. That relief can
t be awarded if the court finds that the “default or dismissal was not, in fact, caused by the attorney’s mistake, inadvertence, surprise, or neglect”; and 

6. That, in awarding relief, the court must make the neglectful attorney pay the opposing party reasonable compensatory fees and costs resulting from the unnecessary default or dismissal.

On top of these textual requirements, courts have determined that even if the textual requirements are met, mandatory relief is not available to relieve a party from a default resulting from a failure to comply with a jurisdictional deadline. So if your attorney blows the deadline to file a notice of appeal, all you have is a malpractice claim.

This case implicates statutory interpretation issues concerning elements 1, 3, 5, and 6.

First, the court finds that an order issuing terminating sanctions is a “dismissal” potentially meriting mandatory relief under § 473(b). The court’s analysis on the issue is brief, but not without controversy. Indeed, the court does not address the substantial unresolved splits of authority on the issue. 

The court relies on Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 256 (2002), which held that § 473(b) relief should be liberally construed, and Aldrich v. San Fernando Valley Lumber Co., 170 Cal. App. 3d 725, 736 (1985), which held that a terminating sanction issued for failure to comply with a discovery order is the “practical equivalent of a default judgment.” Problem is that Zamora and Aldrich both address discretionary relief under § 473(b). Zamora specifically distinguishes cases addressing mandatory relief because they address only a “narrow exception” recently created by the legislature. And as this opinion recognizes, the mandatory relief provisions were not added to § 473(b) until 1988—three years after Aldrich was decided. 

Notably, other cases—cases that are not cited here—expressly hold that concepts of “default” and “dismissal” mean different things depending on whether mandatory or discretionary relief under § 473(b) is at issue. See English v. IKON Bus. Solutions, Inc., 94 Cal. App. 4th 130, 143 (2001). And although discretionary relief merits liberal construction, mandatory relief most often does not. In any event, as detailed in cases such as Jerry’s Shell v. Equilon Enterprises, LLC, 134 Cal. App. 4th 1058 (2005), the whole issue is the subject of a pretty substantial controversy. Compare In re Marriage of Hock & Gordon–Hock, 80 Cal. App. 4th 1438 (2000) (liberally construing what counts as a default); Avila v. Chua, 57 Cal. App. 4th 860 (1997) (same); Yeap v. Leake, 60 Cal. App. 4th 591, 600 (1997) (same); with Noceti v. Whorton, 224 Cal. App. 4th 1062, 1068 (2014) (literally construing “default or dismissal”); Las Vegas Land & Dev. Co., LLC v. Wilkie Way, LLC, 219 Cal. App. 4th 1086, 1092 (2013) (same); Hossain v. Hossain, 157 Cal. App. 4th 454 (2007)
(same); Huh v. Wang, 158 Cal. App. 4th 1406 (2007) (same); Vandermoon v. Sanwong, 142 Cal. App. 4th 315 (2006) (same); Prieto v. Loyola Marymount Univ., 132 Cal. App. 4th 290 (2005) (same); Gotschall v. Daley, 96 Cal. App. 4th 479 (2002) (same); English, 94 Cal. App. 4th at 130 (same)

Indeed, apropos here, Justice Epstein’s concurrence in Jerry’s Shell states that “the failure to comply with discovery orders, resulting in the ultimate sanction of dismissal, cannot be fitted within the rationale of [§ 473(b)’s mandatory relief provision].” Jerry’s Shell, 134 Cal. App. 4th at 1075. But on the other hand, Matera v. McLeod, 145 Cal. App. 4th 44 (2006) applied the mandatory relief provision to vacate default judgment that was entered after court struck defendant’s answer as a sanction for failing to respond to discovery. The court here does not acknowledge, much less grapple with, the competing authorities. Instead, we get two not particularly relevant cases and a paragraph.

I have little doubt that the briefs here were significantly to blame. (The one I can find online is not a portrait of clarity.) But in a published opinion, that’s still a problem. The court has created a kernel of citable precedent that makes no effort to reconcile itself with a substantial and developing body of conflicting case law. And (as I have complained about over and over again) in a state with an overcrowded Supreme Court docket, no horizontal stare decisis, and no en banc procedure, that puts trial courts and litigants in a pretty big bind.

In any event, moving on to element five, upon satisfaction of the other conditions, § 473(b)’s mandatory relief provision requires the motion to be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (emphasis mine). This works as sort of a negative causation exception. That is, even if an attorney steps up to take the blame for the default, if a cause of the default was not in fact the attorney’s screw up, the court can deny the motion. 

The opinion touches on two aspects of this rule.

First, the court holds that the phrase “unless the court finds” means that for the exception to apply, the trial court must make an express finding in writing or on the record. The court goes on, however, to find that a failure to include such a finding merits reversal only when it results in prejudice to the appellant.

I don’t really understand why this holding is in the opinion, as the court never applies the rule it creates to the facts of the case. It also makes me a little nervous to impose procedural formality requirements on trial courts that can then be held against litigants to punish them for acts of the trial judge that are beyond their control—as is often the case in the new trial context

That all said, when combined with the prejudice standard, at the end of the day, the requirement seems kind of meaningless. How can the trial judge’s procedural mistake in failing to write down that he or she finds that something else caused the default ever change the outcome on appeal? Either the record supports alternative causation meriting denial, in which case there is also prejudice for failure to make the finding, or it doesn’t, meriting a grant. So this just seems like directory advice about best practices for trial courts. And in that sense, it’s fine.

The court then expressly declines to address a second issue, which is significant: what causation standard applies to this element? If the attorney’s fault is a proximate, but not the only, cause of the default, is mandatory relief still appropriate? The Court recognizes that this question is the subject of a split. Some courts say being a proximate cause is enough. Benedict v. Danner Press, 87 Cal. App. 4th 923, 929 (2001). Others say that the client—generally the alternative cause of a default—must be “totally innocent of any wrongdoing” and that the attorney must be “the sole cause of the default or dismissal.” Lang v. Hochman, 77 Cal. App. 4th 1225, 1248 (2000). But because, in this case, the court ultimately finds that the the record contains no evidence of the client’s negligence or misconduct, the court simply assumes, without deciding, that the stricter “innocent client” standard applies.

The court then addresses an issue that implicates element three: whether plaintiff was required to serve the verified RFA responses to which she previously failed to respond along with her § 473(b) motion. Part of the discretionary relief provision requires the movant to accompany the application with a copy of the answer or other pleading that would cure the default or dismissal.  A prior case—Carmel, Ltd. v. Tavoussi, 175 Cal. App. 4th 393 (2009)—reads the “proper form” requirement in the mandatory relief paragraph to incorporate this rule. The court here finds that the requirement essentially means that the plaintiff should have served her verified RFA responses along with her § 473(b) application. But it also finds that the rule is subject to a substantial compliance standard. Since plaintiff served verified responses that substantially responded to the RFAs on the day before the hearing on her motion, she substantially complied with the requirement and thus was entitled to mandatory relief under § 473(b).

Finally, on element six—that the attorney who caused the default pay the expenses it caused—the court notes that § 473(b) relief is not conditioned on payment of that sanction. The court should thus issue the sanction award, but any attendant collections issues are essentially irrelevant to whether plaintiff can revive her case.


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