Opinion
D052637
7-15-2009
ERICA HOWARD, Plaintiff and Respondent, v. DONALD DEWITT, Defendant; MONTEREY INSURANCE COMPANY, Movant and Appellant.
Not to be Published in Official Reports
The issue here is whether the trial court erred by denying the motion of Monterey Insurance Company (Monterey) to set aside a default and default judgment of $4,697,318 entered against defendant Donald DeWitt on the ground of "mistake, inadvertence, surprise or excusable neglect" within the meaning of Code of Civil Procedure section 473, subdivision (b), and to file a complaint in intervention. Monterey declined to provide a defense to DeWitt in this personal injury action by Erica Howard, even though complaint allegations raised the potential that DeWitt was an insured under the premises liability policy under agency principles, and the trial court denied a summary judgment motion for other defendants who Monterey did defend, based on triable issues of fact Howard raised pertaining to whether DeWitt was their agent. Monterey, presumably fearing it faces liability for the default judgment, says it is now ready to defend DeWitt. We affirm the order. We also impose sanctions in the amount of $750 against Montereys attorney for misrepresenting in Montereys briefing the facts contained in the appellate record.
All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Lisa Cappelletti owned an apartment complex in San Diego. At the relevant time, Monterey insured her under a business owners policy. The policy had a limit of $1 million per occurrence, and it covered personal injury and property damage claims against Cappelletti and her employees, and any person or organization "while acting as your real estate manager."
On December 31, 2001, a New Years Eve party was held at the apartment complex. Howard, who was then 15 years old, went to the party with Paul Peterson, who was also a minor. They were charged an admission fee. Alcohol was served to minors, including Peterson, who became intoxicated. About 1:00 a.m. on January 1, Howard and Peterson left in his car. He lost control of the car and it rolled several times. She was nearly killed and now suffers from permanent injuries.
In April 2002 Howard sued Peterson and his parents, Cappelletti, Ron Hammett and Ron Hammett Properties (together Hammett), and DeWitt. Hammett was the apartment complexs property manager. As to DeWitt, the complaint alleged he lived at the apartment complex; was the "onsite property manager" and the agent or employee of Cappelletti or Hammett; was "present during the party [and] facilitated and promoted the party by charging admission"; and purchased alcohol and furnished it to minors, including Peterson, who became "obviously intoxicated." The complaint also alleged Cappelletti and Hammett breached their duty of care by "hiring [DeWitt] as an onsite manager [and] not monitoring [his] conduct as an onsite manager." The complaint contained counts against Cappelletti, Hammett and DeWitt for negligence, negligence per se based on the illegal furnishing of alcohol to a minor, and premises liability; against Cappelletti and Hammett for negligent supervision of DeWitt; and against DeWitt for intentional infliction of emotional distress.
Cappelletti and Hammett provided a copy of the complaint to Monterey, which accepted their defense. Monterey then became aware of the allegations against DeWitt, and it began an investigation into whether he was an insured under the policy. In July 2002 an investigator for Monterey took a recorded statement from DeWitt. The investigators August report states he learned DeWitt had been served with the complaint the previous June. Monterey concluded DeWitt was not an insured, and it declined to defend him. DeWitt had no attorney and made no appearance.
In May 2003 the court denied Cappelletti and Howards motion for summary judgment because "triable issues of material fact exist as to whether Don DeWitt was [their] agent." The court elaborated as follows: "Defendants evidence shows that . . . DeWitt was an independent contractor and that he was not an on-site manager. The evidence in opposition shows that DeWitt would hold himself out as an on-site manager, that . . . Hammett told the tenants to go directly to DeWitt if they had a problem instead of first contacting Hammett . . .; that DeWitt had master keys to the apartments; and that DeWitt showed an apartment he was working on to a prospective tenant. Evidence is also disputed as to whether . . . Hammett gave prior approval to DeWitt to hold the New Years Eve party during which liquor was sold to minors." Despite this ruling, Monterey did not step in to defend DeWitt as a potential insured under its policy.
In December 2003 Montereys investigator took another recorded statement from DeWitt. The investigators January report pertaining to the interview states, "We challenged Don [DeWitt] to tell us why, since hes been living at the subject apartment, he could notbe considered the `resident manager. He acknowledges having done work for Hammett on the subject property, but he denies any regularduties there." (Original emphasis.)
In January 2004 the court approved a good faith settlement under which Howard accepted Petersons $250,000 insurance policy limit in settlement of her claims against him. Petersons parents had been dismissed from the case on summary judgment.
The case proceeded against the remaining defendants. In an October 20, 2004 deposition, DeWitt testified that the first time Montereys investigator interviewed him, "he [the investigator] told me that I might be able to get advice but he wasnt sure at that time." When asked whether the investigator said Monterey would provide him with a defense, DeWitt responded, "No, they didnt say `Dont worry. They said, `We dont know how this is going to work out. We might be able to get an umbrella over you, but we cant directly do it because it is two different parties or something like that." DeWitt was asked to be more specific, and he responded: "Somehow help me with attorneys, but it was going to be difficult. He wasnt sure how it was going to work because it is a conflict of interest. I think he said something like that. The attorney representing [Cappelletti and Hammett] and also representing me and it combined us together. It is either not right or doesnt look right." DeWitt asked the investigator whether he should retain an attorney, and the investigator responded, "`It is a little early in the ball game right now. If you want one, you can get one." DeWitt told the investigator he could not afford an attorney. An attorney Monterey appointed to defend Cappelletti and Hammett attended DeWitts deposition.
On November 22, 2006, more than four years after serving DeWitt with the complaint, Howard filed a request for entry of his default. The court entered default on the same date. A prove-up hearing was held on December 11, 2006, during which no appearances were made and the matter was submitted on declarations. The court entered judgment for Howard in the amount of $4,697,318, and on December 20 Howard served notice of entry of judgment on Hammett and Cappelletti.
In a March 2007 letter to Monterey, Howard demanded its $1 million policy limit for settlement of claims against Cappelletti, Hammett and DeWitt. The letter asserted Monterey had a duty to defend DeWitt in the litigation because the complaint and evidence showed a potential for coverage under the policy, its refusal to defend DeWitt resulted in the default judgment against him, and the failure to settle for policy limits would expose Monterey to excess liability for the entire judgment. Monterey did not respond to the letter.
On about April 20, 2007, Capelletti and Hammett served Howard with an offer to compromise the matter for $50,000. (§ 998.) On April 24, Howard filed an acceptance of the offer. On June 13, 2007, Cappelletti and Hammett were dismissed from the action.
In May 2007 Monterey moved for an order setting aside the default and default judgment against DeWitt on the ground of mistake, inadvertence, surprise or excusable neglect (§ 473, subd. (b)), and granting it leave to file a complaint in intervention to protect its interests. Monterey argued that DeWitt neither tendered the defense of the action to it nor claimed he was insured under the policy, and it was not provided with proof of service of the complaint on DeWitt. Monterey also complained that Howard did not notify it of her request for default or the default judgment before they were entered, and rather acted "in secret."
The motion was heard on January 16, 2008. After taking the matter under submission, the court ruled against Monterey in a lengthy written decision. The court explained the evidence showed that years before the default was taken against Dewitt, Monterey knew of the complaint allegations against him, knew he had been served with the complaint, investigated whether he was an insured under the policy and discussed the possibility of providing him with a defense, and he expressed a desire to have legal counsel. The court found the "communications between Mr. DeWitt and the insurer as shown by the evidence was a request by Mr. DeWitt to defend the lawsuit. The insurer possessing this knowledge declined to provide Mr. DeWitt with a defense and proceeded to take a position adverse to [him] through out [sic] the litigation of this matter." Under those circumstances, Monterey did not show mistake, inadvertence, surprise or excusable neglect within the meaning of section 473, subdivision (b).
DISCUSSION
I
Legal Principles
"The court may, upon any terms as may be just, 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." (§ 473, subd. (b).) It is the moving partys burden to show the requisite mistake, inadvertence, surprise or excusable neglect. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.)
"The term `surprise, as used in section 473, [subdivision (b)] refers to `"some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)
Mistake of fact is a ground for relief under section 473, subdivision (b). Further, relief may be granted under the statute for mistake of law, usually the mistake of a partys counsel. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, §§ 152, 153, pp. 745-747.) However, when "the court finds that the `mistake is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law, relief will be denied." (Id., § 155, p. 749.)
"`Neglect or `excusable neglect under [section 473, subdivision (b)] is a broader concept than `mistake. In some instances, the neglect offered as an excuse is a result of mistake, and cases can appropriately be cited under both headings. But the neglect may be a result of disability [citation], accident or inadvertence [citation], or fraud or unfair conduct of the adverse party or his or her attorney." (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 158, p. 753.)
For purposes of section 473, subdivision (b), the ground of "inadvertence" "is sometimes combined with that of excusable neglect. (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 156, p. 752.) "But the court will not relieve a party from the effects of mere carelessness." (Ibid.) Generally, "[n]either ones change of mind nor his inexcusable negligence is ground for vacating a judgment. To warrant relief under section 473 a litigants neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. . . . Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs. . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as of the excusable variety upon a sufficient showing." (Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)
The disposition of a section 473 motion "rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. . . . [I]t is generally accepted that the appropriate test of abuse of discretion is whether . . . the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
Because the "law strongly favors trial and disposition on the merits . . . any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief. We will more carefully scrutinize an order denying relief than one which permits a trial on the merits." (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.)
II
Analysis
A
Surprise
Monterey urges us to reverse the courts order because "California law doesnt permit clever litigants to use default judgments to hit gigantic jackpots for premises-liability claims already resolved on their merits." Monterey complains that it settled Howards claims against Cappelletti and Hammett in January 2004 for $50,000, and then two years later Howard obtained a huge default judgment against DeWitt when the premises liability claims were already supposedly entirely resolved, and then "surprisingly foisted" the judgment on Monterey by making a demand for the $1 million policy limit. Monterey submits that by moving to set aside the default judgment, it has now "offered to defend DeWitt."
Monterey misrepresents the facts, relying on an erroneous statement by the trial court in its order that "[o]n January 16, 2004, the Court found the settlement between defendants Cappelletti and Hammett and plaintiff to be in good faith." As discussed above, however, the January 2004 settlement was between Howard and Peterson. Monterey obviously knows that Cappelletti and Hammett did not settle with Howard in January 2004, as it defended them throughout the litigation. Cappelletti and Hammett settled with Howard in late April 2007, several months after the date Howard obtained a default judgment against DeWitt, December 11, 2006. Further, Monterey had notice of the default judgment, as on December 20, Howard served a notice of entry of judgment on Cappeletti and Hammett. In other words, Monterey voluntarily paid Howard $50,000 with the knowledge she had already obtained a default judgment against DeWitt for $4,697,318.
In her respondents brief, Howard points out Montereys error. She also submits a respondents appendix that includes a copy of Howards April 24, 2007 acceptance of Cappelletti and Hammetts offer to compromise her claims against them for $50,000. In its reply brief, however, Monterey does not acknowledge the error. To the contrary, Monterey persists in claiming that Howard settled her claims against Cappelletti and Hammett before obtaining the default judgment against DeWitt.
It is a fundamental rule of appellate practice that each brief must accurately reflect the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Further, the appellants opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C); Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97.) "We may impose monetary sanctions for `"any unreasonable infraction of the rules governing appeals . . . as the circumstances of the case and the discouragement of like conduct in the future may require."" (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 28-33; rule 8.276(a)(4).)
All rule references are to the California Rules of Court.
On March 26, 2009, this court, on its own motion, issued an order to show cause why we should not impose sanctions against Monterey and its counsel of record, Lance Orloff, for the misrepresentation of the appellate record in both the opening and reply briefs. On April 6, 2009, they filed a written opposition in which Orloff admitted he did not sufficiently review the facts and "relied on an unfortunate clerical error in the trial courts order." Orloff stated his misrepresentation of the record was not intentional or attributable to Monterey.
Orloff claims his misrepresentation of facts resulted from his inclusion in the appellants appendix of only the documents before the trial court on Montereys motion to set aside the default judgment against DeWitt. Orloff states he "properly assembled the appellants appendix with all the papers filed below in support of an opposed to the motion to vacate and intervene," and Howards "§ 998 Acceptance [of Cappelletti and Hammetts offer of compromise] that Howard presented in her respondents appendix . . . was not before the trial court in the motion to vacate the default judgment." Orloff submits that his "mistake was borne of simple tunnel vision and of a negligent failure to recognize, for the entirety of the record, that the January 16, 2004 date [of the purported settlement by Cappelletti and Hammett] was obviously and logically incorrect." We add, however, that the appellants appendix itself shows that Cappelletti and Hammett were still in the case when the default judgment was entered against Dewitt. For instance, Montereys motion to set aside the judgment states, "Judgment was entered against DeWitt on December 11, 2006 in the amount of $4,697,000," and "[a]fter the judgment was obtained, plaintiff then served the document on all parties except DeWitt on December 20, 2006." (Italics added.) The accompanying declaration of Thomas Scherff, a vice president of Monterey, also shows Monterey was still defending Cappelletti and Hammett when the default judgment was entered against DeWitt. Further, Montereys proposed complaint in intervention states that on "March 30, 2007, plaintiff demanded payment of $1,000,000 policy limits by Monterey . . . to settle all claims against Cappelletti and Hammett, and DeWitt." The appendix also contains a copy of the demand letter. We heard the sanctions matter on June 8, 2009, along with argument on the merits of the appeal.
We conclude sanctions of $750 are in order for Orloffs misrepresentation of the appellate record. The misrepresentation is particularly egregious because Orloff is an appellate specialist with 22 years of experience, and he based Montereys appeal principally on his erroneous rendition of the facts, thereby making the appeal largely frivolous and wasteful of this courts time and resources. Even if the misstatements of fact in the opening brief can be attributed to Orloffs failure to adequately review the record, in the reply brief he does not acknowledge his errors and instead persists in misleading the court. Further, in his opposition, and at the hearing on the order to show cause, Orloff did not satisfactorily explain the nature of the reply brief. Certainly, Montereys assertion it was surprised by the default judgment because the purported sequence of events was unjust is without merit, given the actual sequence.
This opinion constitutes a written statement of our reasons for imposing sanctions against Orloff. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 313.)
B
Mistake or Excusable Neglect
Additionally, Monterey contends we must reverse the order because the default judgment resulted from Montereys mistake or excusable neglect since DeWitt never asked it for a defense and denied he was the resident manager of the apartment complex. We also find this contention without merit.
As this court explained in Eigner v. Worthington (1997) 57 Cal.App.4th 188, 195 (Eigner): "`It is by now a familiar principle that a liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity. [Citation.] . . . "[T]he carrier must defend a suit which potentially seeks damages within the coverage of the policy." [Citation.] . . . . [¶] The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy." However, "`facts known to the insurer and extrinsic to the third party complaint can generate a duty to defend, even though the face of the complaint does not reflect a potential for liability under the policy . . . ." (Ibid.)
"An insurer contesting coverage `may defend the action with a reservation of rights [citation], it may file a separate declaratory relief action [citation], . . . or it may simply deny the request and take its chance that the trier of fact in an action alleging bad faith breach of the contractual duty to defend will agree that no defense was owed. [Citation.] [Citations.] When an insurer wrongfully refuses to defend, the insured is relieved of his or her obligation to allow the insurer to manage the litigation and may proceed in whatever manner is deemed appropriate." (Eigner, supra, 57 Cal.App.4th at pp. 195-196.)
In Eigner, the insurer refused to defend its insured, having determined without any investigation other than comparing the complaints allegations with policy coverage provisions, that there was no coverage. After a $240,000 judgment was entered against the insured, the insurer moved under section 473, subdivision (b) for relief from the judgment on the ground of mistake, inadvertence, surprise or excusable neglect. The insurer argued that had it known plaintiffs claims were covered, it would have defended its insured and obtained a more favorable result. (Eigner, supra, 57 Cal.App.4th at p. 191.) The issue in Eigner was "whether State Farm was on notice the [plaintiffs] claims of emotional distress potentially included physical injury, or whether it was truly `surprised by the judgment." (Id. at p. 197.) The trial court denied the insurer any relief, explaining: "`Remember the Code of Civil Procedure. The trial judge at the time may permit amendments to conform [to] proof right up to time of trial and even after the trial is over[,] . . . every insurance company knows thats the rule. The only way you can control the defense is to take over the defense. [¶] There isnt a defense lawyer worth his salt in the State of California . . . . [who would] tell [the] carrier [it has] no coverage and let it go. What you do in that case is defend under reservation. . . . [¶] I have no — no sympathy whatsoever [with] the carrier [that] leaves the insured out unprotected and then comes in later and say[s], "Oh, we didnt know that that might happen during the course of the litigation. And we werent told about it and, therefore, we should set aside the judgment and start all over again." I dont think thats fair." (Id. at p. 194.) We found no abuse of discretion and affirmed the order denying the motion. (Id. at p. 197; see also Samson v. Transamerica Ins. Co. (1981) 30 Cal.3d 220, 240 [insurer that breaches duty to defend is bound by judgment against insured].)
The complaint allegations unquestionably raised the potential that DeWitt was an insured under Montereys policy, and it concedes it became aware of the allegations when Cappelletti and Hammett provided it with a copy of the complaint. In July 2002 DeWitt advised Montereys investigator he had been served with the complaint. DeWitts deposition testimony shows that during the interview he and the investigator discussed whether Monterey would provide him with an attorney. The investigator indicated it may be able to cover him under an "umbrella," but there was some type of supposed conflict of interest that prevented it from representing him. DeWitt told the investigator he could not afford his own attorney, and Monterey knew he was unrepresented.
Those facts amply support the courts ruling that DeWitt adequately tendered his defense to Monterey. "Tender can be either formal or constructive." (Truck Ins. Exchange v. Unigard Ins. Co. (2000) 79 Cal.App.4th 966, 979, fn. 16.) "The insured must provide some notice of the claim to the insurer in order to trigger its duty to defend the insured. No formal request that the insurer undertake the defense is required." (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2008) ¶ 7.614, p. 7B-37.)
Further, while Cappelletti, Hammett and DeWitt may have denied to Montereys investigator that DeWitt was the apartment complexs resident manager, a more thorough investigation into Howards claims would have revealed conflicting evidence on the legal issue of agency. Indeed, in May 2003 the court denied Cappellettis and Hammetts summary judgment motion because Howard submitted evidence that raised triable issues of fact as to whether DeWitt was their agent at the relevant time. In other words, the summary judgment ruling again raised the potential that DeWitt was an insured under the policy. At that point, if not sooner, Monterey should have picked up DeWitts defense if it wanted to control the litigation as to him, perhaps under a reservation of rights, or brought a declaratory relief action on the coverage question. Instead, Monterey apparently continued to rely exclusively on evidence favorable to its noncoverage decision.
Under the circumstances, Monterey cannot reasonably claim the default judgment against DeWitt, entered more than four years after service of the complaint on him, or its decision not to defend him, resulted from its inadvertence or excusable neglect. Indeed, there is no suggestion that the facts pertaining to potential coverage under the policy were more fully developed after the default judgment was entered against DeWitt. As Monterey declined to defend DeWitt, it had no interest in the outcome of Howards claims against him and it cannot claim prejudice or the lack of an opportunity to litigate liability or damages. (See Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 886.) We find no abuse of discretion, as similar to the situation in Eigner, the insurers conduct was unrelated to surprise, inadvertence, mistake or excusable neglect within the meaning of section 473, subdivision (b).
Monterey assails Howard for not notifying it that she intended to take DeWitts default, suggesting it would have belatedly accepted a defense duty based on such knowledge. A plaintiff, however, is required to notify only the attorney for the defaulting party, if known, or alternatively the defaulting party directly at his or her last known address. (See § 587.) According to the declaration of Howards trial counsel, "I did not serve the request for a default . . . on anyone other than . . . DeWitt because he was not represented by counsel and was not being defended by any insurance company."
C
Montereys Authorities
Montereys reliance on Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, is misplaced. In Jade K., this court reversed an order denying a business liability insurers motion to vacate a default judgment against its insured in a sexual molestation case, as the record contained no evidence that before entry of the default judgment the insurer knew the insured was requesting a defense or coverage under the policy. (Id. at p. 1473.) The insured also had coverage under a homeowners policy, and he had sent a copy of the complaint only to the homeowners carrier. (Id. at p. 1470.) Under that scenario, we found the default was taken "through no inexcusable neglect" by the business liability insurer. (Id. at p. 1473.) Here, as discussed, Montereys neglect was inexcusable.
Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, is also unavailing. In Rogalski, the court reversed a default judgment on the ground the defendant reasonably believed his insurer would file an answer or other responsive pleading on his behalf in a timely manner. The trial court denied the defendants motion to vacate the judgment on the ground the failure to respond was not the result of the insurers mistake or inexcusable neglect, but of its deliberate decision. The Court of Appeal explained: "Golden Eagle may well have acted deliberately, indeed reprehensively, in failing to either file a responsive pleading or give Nabers adequate warning that it would not do so. That does not, however, justify denying relief to this defendant, who was so obviously caught unaware by his insurers actions. In ruling the trial court failed to consider Nabers excusable neglect in filing a response." (Id. at p. 820; see also Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694 [insured reasonably relied on insurer to respond to complaint in timely manner].) Here, the motion for relief from default is by the insurer, based on the insurers conduct. This case does not concern DeWitts conduct in not responding to the complaint.
Additionally, Monterey also cites Mirabile v. Smith (1953) 119 Cal.App.2d 685, in which the court held a default judgment should not have been entered against one defendant alleged to be jointly and severally liable under a contract, when the claims against the other two contracting defendants remained unadjudicated. "[I]f the defense presented by the appearing defendants is sustained, no judgment could or should be entered against this defaulting defendant." (Id. at p. 689.) Here, however, the complaint alleged Cappelletti and Hammett had independent liability as well as vicarious liability for DeWitts conduct. "In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." (§ 579.) In any event, the issue has nothing to do with whether Monterey is entitled to relief under section 473, subdivision (b), and since we decide the matter against Monterey, it may not pursue arguments on DeWitts behalf.
The issue of whether Monterey ultimately has any liability for the default judgment against DeWitt is not before us, and we express no opinion on the matter. The only issue here is whether Monterey is entitled to relief from the default judgment under section 473, subdivision (b).
DISPOSITION
The order is affirmed. Sanctions in the amount of $750 payable to the clerk of this court are imposed against Orloff for misrepresenting the appellate record. Howard is entitled to costs on appeal.
WE CONCUR:
NARES, J.
MCINTYRE, J.