Arguably Unauthorized Settlement Is Voidable, Not Void, under Code of Civil Procedure § 437(d).

W. Bradley Electric, Inc. v. Mitchell Engineering, No. A167137 (D1d5 Feb. 28, 2024)

Fatal traffic accident case where the Decedent’s family sued three Defendants—driver, the rideshare company she was working for, and a Contractor who had done some work on the sidewalk where she was walking. Contractor proceeded to cross-claim against two other companies (who appear to be other contractors) for equitable indemnification. As is the usual course in these kinds of things. everybody eventually sued everyone. Plaintiffs eventually settled with the new contractors for $10k a pop.

Contractor’s lawyers propose to their client that they make a similar $10k offer, and then that the settle the remaining contractor cross-claims for and agreement that the settlements are reasonable under Code of Civil Procedure § 877.6, and dismissals and fee waivers. That gets papered and the dismissals filed. Then the rest of the case settles.

Six months later, Contractor moves to vacate the dismissals of the other contractors as, among other reasons*, void under § 473(d), based on an assertion that the client never consented to its attorneys’ agreement to dismiss. The evidence of permission (Contractor appears to have waived privilege) was not entirely clear. But the trial court denied the motion. Contractor appeals.

The Court of Appeal finds that Contractor probably forfeited the § 473(d) by failing to squarely raise it in the trial court. But nonetheless, it reaches the merits. 

Canvassing the authority, the Court finds that a settlement entered without clear permission from a client is probably voidable but not void and thus not subject to vacation under § 473(d). The latter mostly deals with situations where the court never had jurisdiction to act. There’s an outlier case where the Court found that an attorney’s dismissal with prejudice, when the client only authorized a without prejudice dismissal was void under § 473(d). Romadka v. Hoge, 232 Cal. App. 3d 1231 (1991). But subsequent cases have recognized that Romadka really was faced with a case of attorney mistake that could be remedied under § 473(b), and not with an actually void judgment that could be vacated under § 473(d).

And in any event, the Court of Appeal finds that there was adequate evidence that Contractor had actually ratified the dismissal, and also that denying relief under § 473(d) was not an abuse of discretion.

Affirmed.

*Contractor also moved to vacate the dismissal as a result of attorney mistake, surprise, neglect, etc., under § 473(b). The court deals with that in an unpublished part of the opinion, so I’m not going to get into it.

Not Here. But Guilty.

Mac v. Minassian, No. B309490 (D2d8 Mar. 18, 2022).

Plaintiff sued some Defendants over failure to pay debts incurred in opening a restaurant. The parties stipulated to amend the complaint to drop one of the Defendants. But the Court never signed the stipulation. Then the case got tried, where everyone assumed that the stipulated amended complaint was operative. There was a bench trial. Afterwards, Plaintiff moved to amend the complaint to conform with proof to add back the missing Defendant. The trial court denied that because it would have prejudice the missing Defendant. But the Court’s statement of decision made findings against him and its judgment named him as a judgment debtor. It should probably go without saying, but absent the kind of situation where you amend a judgment to add an alter ego—not at play here—you can’t add a defendant after trial is over.

Reversed.

Can't Sneak in a Brand New Claim Like That

LeMere v. L.A. Unified Sch. Dist., No. B281843 (D2d8 May 14, 2019)

A demurrer was granted with leave to amend. When plaintiff amended, she also added a brand new cause of action. But she didn’t have leave to do that. So the trial court dismissed. Moreover, it had been more than a year since the original complaint had been filed. Plaintiff didn’t have any good reason why the new claim couldn’t have been alleged all along. And the claim was nonetheless legally defective. So the trial court was not required to afford her leave.

Affirmed.

On Appealablity

Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)

The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.

But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.

Serial Discovery Abuser Gets Terminating Sanctions. And they Stick, for Once!

J.W. v. Watchtower Bible & Tract Society of N.Y., No. E066555 (D4d2 Dec. 10, 2018)

A Girl sued the Watchtower Society—the governing body of the Jehovah’s Witnesses—for its failure to prevent her from being molested by an elder of the Church. In discovery, she requested a copy of all correspondence received by the Church after it sent a letter to its congregations asking them to explain any occasions where persons known to have molested children were promoted to positions of authority with the Church. The Church claimed the documents were subject to the clergy-penitent privilege and that it would be unduly burdensome to search for them. The trial court disagreed and granted Girl’s motion to compel.

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.)

Defendant Gets Too Cute Ducking Service, Relief from Default Denied

Giorgio v. Synergy Mgmt. Grp., LLC, No. B248752 (Nov. 6, 2014)

Defendant allegedly submitted more than $250,000 in false expense reports to plaintiff. When it sued to recover, plaintiff made dogged efforts to serve defendant. They included personal service in an airport while defendant was traveling, service by various forms of mail in Amsterdam, hiring Dutch private eyes, various efforts at mail service at an address in LA—an address the USPS confirmed was a good address for the defendant—a stakeout at that same address, and service of the papers on attorneys who had previously represented the defendant in connection with the dispute. When of all that came to no avail, plaintiff moved for an obtained leave for service by publication, which the trial court granted. After plaintiff published the summons in the LA Daily Journal and defendant still did not respond, plaintiff put the defendant into default and moved for default judgment.

Five days later, the defendant—heretofore unreachable, but suddenly incredibly responsive—filed a motion for relief from default under Code of Civil Procedure § 473(b). He submitted a declaration attesting that he had not lived or worked in California since 2009. The trial court, finding that the defendant made a deliberate effort to skip out on service, declined to relieve him from default and entered a $250,000 default judgment.

The court of appeal explains that service by publication is a last resort after the others means have been exhausted and the defendant cannot be served otherwise with reasonable diligence. As the court recognizes, since nobody actually reads the notices in the back of the Daily Journal, service by publication is a fiction. “[T]here is really little expectation that a defendant so served will in fact acquire actual notice from the publication.”

In any event, the court finds that substantial evidence support the trial court’s finding that the defendant couldn’t be served personally or by mail despite reasonable diligence. Plaintiff submitted credible evidence attributing the LA address to the defendant. And because evidence showed defendant’s address in LA, publication in an LA newspaper was sufficient to meet the publication by service requirements.

Affirmed.

No Third Bites at the Apple

Nixon Peabody v. Superior Court, No B256873 (D2d4 Oct. 17, 2014)

Plaintiff voluntarily dismissed its case in LA Superior and a related case in the C.D. Cal, which lead to the involuntary dismissal with prejudice of a third, related, federal case under the “two dismissal” rule. See Fed. R. Civ. P. 41 (a)(1)(B) (second dismissal is counted as on the merits if plaintiff has previously dismissed a prior case “based on or including the same claim” ). Plaintiff then moved under Code of Civil Procedure § 473(d) to revive the LA Superior Court case, arguing that because its attorney had not informed it of the consequences of the dismissal, it should be relieved from default. The trial court said ok, but the court of appeal says no dice. Section 473(d) might permit relief when an attorney dismisses a client’s case without authorization, but it doesn’t apply when the attorney just fails to explain the consequences of a dismissal.

Writ granted.

Doin' the Right Thing ...

Nocetti v. Whorton, No. C071317 (D3 Mar. 18, 2014)

Plaintiffs failed to show up at trial because their attorney, dying of cancer, apparently miscalendared the trial date. Defendant moved for judgment, and after “reviewing the entire file,” (whatever that means) the trial court entered a defense judgment on the merits. Plaintiffs moved to vacate the judgment under Code of Civil Procedure § 473(b), which affords relief—sometimes mandatory, sometimes at the discretion of the court—from orders that entered due to the mistake, inadvertence, or neglect of a party or its attorney. At a hearing plaintiff’s lawyer was too sick to attend, the trial court denied the motion. The lawyer died soon thereafter, plaintiffs got new counsel, and they appealed. 

In the published part of the opinion, the court holds that plaintiffs weren’t entitled to mandatory relief under § 473(b) because it applies only to “defaults” and “dismissals.” To avoid rendering the discretionary relief as surplusage, established case law reads the mandatory relief narrowly to apply only to default judgments due to failure to respond to a complaint and the plaintiff-side equivalent—dismissals entered after a plaintiff fails to respond to a demurrer or other dismissal-type motion. Because entry of a defense judgment based on a nonappearance after “reviewing the entire file,” is not a dismissal, so defined, plaintiffs don’t get mandatory relief. 

But the court goes on, in an unpublished part of the opinion,* to show plaintiffs a little mercy. It reverses and remands to the trial court to reconsider providing relief under the discretionary provisions of § 473(b), which are not limited to defaults and dismissals, but require any neglect to be excusable. Which having an attorney who appears to have made a mistake while dying of cancer would seem to be.

Reversed.

*I’m on the record as not being a fan of the partial publication rule, which often seems like an excuse to avoid making reasoned decisions about hard or fact-intense issues that bind future cases, when appellate judges think it isn’t worth making precedent. Like decisions about evidence, discovery, and other seemingly mundane procedural issues, for instance. 

But I’ll admit that the rule does occasionally provide a safety valve when what we’ll broadly call “the equities” are offended. In this case, at the § 473(b) motion hearing that plaintiffs’ attorney didn’t attend because he was too busy dying, one of the effectively pro se plaintiffs apparently agreed with the defendant that the court should just “get the matter over with” and he would sue the attorney for malpractice. Some might see that as invited error or waiver. And defendant here made the argument, which the court rejects in a footnote because “[t]his was a voice, though, of frustration, of venting; not a voice knowledgeably inviting error.” Query if that’s a really a call—inferring frustrated sarcasm from a cold transcript—that an appellate court is in a position to make. But it’s the right thing to do. And in the end, I suppose it’s forgivable that this part of the opinion isn’t published, implicit categorical imperative at the heart of the common law appellate process be damned.

Failure to Oppose Summary Judgment Is Not a "Default" Excusable Under CCP § 473(b)

Las Vegas Land & Development Co. v. Wilkie Way LLC, No. B23921 (D2d3 Sept. 19, 2013)
 
The court of appeal holds that mandatory relief under Code of Civil Procedure § 473(b) in unavailable for relief from summary judgments or when the moving party does not submit an attorney affidavit.

Judgment in Mineral Dispute Stays Put in State Court

Tearlach Resources Ltd. v. Western States International, Inc., No. F065511 (D5, as amended Sept. 17, 2013) 

The trial court entered judgment in a case about a dispute over an oil and gas lease on federal land. It subsequently granted a motion to vacate the judgment under Code of Civil Procedure § 473(d) on the grounds that it lacked subject matter jurisdiction to enter the judgment because it believed that the claim was subject to the exclusive jurisdiction of the federal courts. The court of appeal reversed, holding that (a) federal court jurisdiction is exclusive only when a statute expressly provides that result; (b) that the Mineral Leasing Act of 1920, which governed the claims at issue, did not provide for exclusive federal jurisdiction; and (c) because the dispute was just a contract dispute between lessees and assignees, the interests of the United States were not sufficiently implicated to make it a necessary party, such as to require exclusive federal jurisdiction under 28 U.S.C. § 1346(f), which vests the federal courts with exclusive jurisdiction to actions to quiet title to real property in which the United States claims an interest.

Reversed.

New Case, New Summons, New Service. No Exceptions.

Abers v. Rohrs, No. G047034 (D4d3 July 13, 2013).

Nothing like getting things started with a dispute over the sufficiency of service. It would seem that trial counsel for the plaintiff here violated ALAS rule number one: Do Not Blow Jurisdictional Deadlines. Having done so, nothing in law or equity could save him or his client.