Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. CV771638, CV784685
Mihara, J.
Mani Subramanian appeals from an order denying his motion to vacate dismissal. We conclude that the trial court did not abuse its discretion and affirm the order.
Respondents are QAD, Inc., QAD Japan K.K., QAD Japan, Inc., John M. Doordan (Doordan), and Arthur Andersen LLP (Andersen).
I. Statement of Facts
Appellant is the majority shareholder, director, and president of Vedatech, K.K. (Vedatech), a Japanese corporation. QAD, Inc. (QAD) develops and sells software and has its headquarters in California. Vedatech assisted QAD in entering the Japanese market.
In January 1998, QAD and QAD K.K., QAD’s Japanese subsidiary, filed a complaint against appellant and Vedatech, Inc., a Washington corporation. The complaint in case No. CV771638 alleged fraud, unfair competition, intentional interference with contractual relations, intentional interference with prospective economic advantage, trade libel, disparagement of goods and quality, and breach of fiduciary duty.
On September 17, 1999, Vedatech and appellant filed a complaint against QAD, Andersen, and Doordan in case No. CV784685. The complaint alleged breach of contract, breach of duty of good faith and fair dealing, interference with contractual relations and business advantage, interference with prospective economic advantage, and trade libel.
On December 23, 1999, case No. CV784685 was removed to federal court, and on April 26, 2000, it was remanded to state court. On December 17, 2001, the two cases were consolidated. Between March 15, 2004 and August 8, 2005, the consolidated action was again removed to federal court.
On February 28, 2006, appellant brought motions to set a trial date and to exclude time under Code of Civil Procedure section 583.340 in which to bring the case to trial. On March 3, the trial court found that its jurisdiction was suspended for 636 days while the action was pending in federal court, and set the case for trial on June 12.
All subsequent calendar references are to the year 2006 unless otherwise stated.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Respondents renewed their efforts to obtain appellant’s voluntary appearance for a deposition. They were unsuccessful. On April 14, QAD brought a motion for leave to take appellant’s deposition on April 20. At the hearing on the motion, appellant informed the court that he could not appear in California on April 20, but could do so on May 9. After QAD modified its request, the trial court granted the motion, and ordered appellant to appear for a deposition on May 9.
On May 8, the day before his court-ordered deposition, appellant applied ex parte for an order excusing him from appearing for his deposition. Appellant stated that he was unable to travel to the United States, because he was caring for his ailing parents. After appellant stated that he would appear in California for his deposition on May 19, the trial court ordered him to appear on that date.
The parties then exchanged settlement proposals, but did not reach an agreement. During this period QAD expressly stated that these discussions would have no impact on the date set for trial. QAD advised appellant that if he sought to delay the litigation on the ground that the parties were engaged in settlement negotiations, QAD would immediately withdraw any pending settlement offer.
On May 18, appellant called QAD’s counsel several times to discuss settlement. During these discussions, QAD’s counsel asked him repeatedly to confirm that he would be appearing in California the following day for his deposition. Appellant declined to do so. Late in the afternoon of May 18, QAD’s counsel believed that the parties had reached an agreement. He then requested, and appellant agreed, that the settlement agreement would be put on record the following day pursuant to section 664.6. QAD’s counsel also notified appellant that his deposition was not being taken off-calendar and that if the settlement was not successfully placed on the record, QAD expected appellant to proceed with his deposition.
On May 19, appellant appeared at the hearing by telephone and confirmed that he could not appear for his deposition. The parties were unable to place a settlement agreement on the record. The trial court then continued the case to May 24.
On May 22, QAD’s counsel sent an e-mail to appellant in which he proposed another date for his deposition. The e-mail also stated that if appellant did not respond by 5:30 p.m. that day, QAD could bring an ex parte application on May 24 for an order shortening time to hear a motion for terminating sanctions based on appellant’s repeated failures to appear for his court-ordered deposition. When appellant did not respond, QAD noticed its ex parte application for hearing the following day.
On May 23, QAD’s counsel e-mailed appellant with a settlement proposal. The e-mail stated in relevant part: “What is most important for you to understand, however, is that this Settlement Agreement and General Release of Claims contains the terms and conditions to which QAD is willing to agree. Period. QAD is NOT willing to agree to ANY changes to the terms and conditions contained in this agreement . . . . [¶] . . . [¶] To accept the attached, proposed Settlement Agreement, please execute a copy for yourself and for Vedatech K.K. and transmit a copy of your executed agreement by fax and/or e-mail so that it is received in my office no later than 5:00 p.m. PDT today . . . . [¶] If your acceptance of the offer in the prescribed manner has not been received by the specified time, the offer is withdrawn, null, and void.”
On May 23, appellant responded to QAD’s proposal with a “‘Revised and Updated Offer’” to QAD. He stated that he “‘reject[ed] the clearly unacceptable offer’” and claimed that it was “‘insulting, nonsensical, and is [sic] trying to slide backwards, and only shows how unworkable your clients’ [i.e., QAD’s] approach to this matter is.’” Appellant also stated that his offer expired that day at 8:00 p.m. QAD did not respond to this offer.
On May 24, the trial court granted QAD a May 30 hearing date for its motion for terminating or evidence preclusion sanctions against appellant, or alternatively, for a further order compelling appellant to appear for deposition with certain conditions, and for monetary sanctions. The trial court also granted a hearing on appellant’s motion to compel depositions of various respondents and their representatives. Appellant was required to file and serve his moving papers no later than 5:00 p.m. on May 24.
Appellant did not file his moving papers. Instead, on May 24, he filed a request for dismissal, without prejudice, of QAD and QAD Japan K.K. On May 26, he then filed a second request for dismissal, without prejudice, of QAD Japan Inc., Doordan, and Andersen. Appellant served copies of both requests and a copy of his May 26 “Letter to the Judge” in which he told the trial court that he had filed the requests for dismissal, and that the various matters set for hearing the following week as well as the trial should be taken off-calendar. Appellant also attached to his letter a “Preliminary Declaration of Subramanian Previously Prepared.” Appellant stated that he had prepared the declaration “in support of [his] planned opposition to QAD’s motion.” Neither the declaration nor the letter explained why appellant filed the requests for dismissal. However, the declaration states that “QAD played several tricks on [him] in trying to ram through a ‘settlement agreement’ that was very different from what was promised to [him]” and that he could provide “further evidence of the highly deceptive and unfair tactics of QAD and its agents regarding this matter.”
On June 5, appellant sent an e-mail to QAD’s counsel. The e-mail, which was entitled “‘Possibility of Further Negotiations,’” stated: “‘Unless QAD is determined that there will be no more settlement talks at all and it is a fight to the end in all outstanding matters, I believe it would be prudent to agree on a settlement contractual document first before we ever (and if we) get back to discussing a settlement sum, even if that is to happen after days, weeks, months, or years.’” QAD did not respond to the e-mail.
Respondents did not engage in any further settlement negotiations. Though appellant communicated with QAD regarding other matters, he did not indicate that he intended to vacate his voluntary dismissals.
On November 12, appellant sent a settlement demand to respondents. It was not accepted. Appellant did not refer to his voluntary dismissals.
Shortly thereafter, appellant filed a motion for relief pursuant to section 473, subdivision (b). Following a hearing, the trial court granted appellant’s request for judicial notice, denied his request to exclude evidence regarding settlement negotiations, denied his request for a continuance to permit the filing of supplemental evidence, and denied his motion for relief to vacate his voluntary dismissals. The order stated in relevant part: “First, [appellant] failed to show the requisite due diligence in bringing his Motion. There is no evidence of any effort by [him] to pursue settlement during the several months prior to his last-minute filing of the Motion just prior to the expiration of the six-month jurisdictional time limit. Second, [appellant] has failed to make a sufficient showing of any mistake, inadvertence, surprise, or excusable neglect entitling him to relief under Section 473(b), Calif. Code of Civil Procedure. Finally, reinstatement of the lawsuit at this point, even if the motion were deemed diligent and supported by sufficient evidence on the merits, would be a futile exercise by the Court, since the case would be subject to immediate, mandatory dismissal under Section 583.310, Calif. Code of Civil Procedure, requiring the matter to be brought to trial within five years after commencement.”
At the conclusion of the hearing, the trial court commented, “[w]ithout being too terribly unkind, I think that this motion is just another effort on the part of Mr. Subramanian to delay the prosecution of this action. [¶] It was clear to me throughout the course of the proceedings, up to the time the case was dismissed, that Mr. Subramanian did not want to go to trial and that he would do whatever he felt could be done to avoid having this case go to trial, as the Court was insisting that he do. [¶] Also, that he would do anything that he could in order to avoid having his deposition taken, which the Court was insisting he do. [¶] I do have to say that I do find Mr. Subramanian’s declaration with respect to the reasons why he entered the dismissal to be incredible and that I have to adopt all of the positions taken by the defendants in this case.”
Appellant filed a timely notice of appeal. The notice specified that the subject of the appeal was the order entered on January 31, 2007, based on the “CCP 473(b) - Denial of motion to vacate voluntary dismissal.” The notice designating the record on appeal specified only the reporter’s transcript of the January 22, 2007 hearing on the motion for relief.
II. Discussion
Appellant contends that the trial court erred in denying his motion for relief from the voluntary dismissal of his case.
The trial court has discretion to relieve a party from a dismissal based on the party’s “mistake, inadvertence, surprise, or excusable neglect” when the application is made “within a reasonable time, in no case exceeding six months.” (§ 473, subd. (b).) “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 the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal.”’” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898, quoting Martin v. Cook (1977) 68 Cal.App.3d 799, 807.) However, “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 from default. For that reason, a trial court’s order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419-1420 (Wang), internal citations and quotation marks omitted.)
We first note that appellant has failed to include a copy of his motion and reply papers as well as respondents’ opposition in the record on appeal. However, it appears from the parties’ briefs and the trial court’s order that appellant based his motion solely on the ground of mistake. According to appellant, he “filed his dismissals under a mistaken assumption that a settlement was possible” and that “the dismissals were entered in order to give time for settlement.”
“A mistake justifying relief [under section 473] may be either a mistake of fact or a mistake of law. A mistake of fact exists when a person understands the facts to be other than they are[.] [¶] . . . [¶] A mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction.” (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368-1369 (Arnaiz), internal citations and quotation marks omitted.)
However, here, the record does not support appellant’s position that he understood the facts to be other than they were. On May 19, the parties failed to place a settlement agreement on the record and the matter was continued until May 24. On May 23, QAD stated by e-mail its final settlement position to appellant. This proposal stated that QAD was “NOT willing to agree to ANY changes to the terms and conditions contained in this agreement.” Thus, QAD clearly indicated that it was unwilling to continue settlement negotiations. This point was further emphasized the following day when it obtained a May 30 hearing date for its motion for terminating sanctions, or alternatively, for an order compelling appellant to appear for his deposition as well as a June 12 trial date. Appellant’s own view of QAD’s offer also indicates that he did not believe that the parties could reach a settlement. He stated that QAD’s May 23 proposal was “‘clearly unacceptable,’” “‘insulting, nonsensical,’” and showed “‘how unworkable [QAD’s] approach to this matter’” was. He also referred to QAD’s conduct during this period as “highly deceptive” and “unfair.” Thus, QAD’s written statements and conduct as well as appellant’s own statements amply supported the trial court’s conclusion that appellant’s claim that he mistakenly believed respondents were interested in pursuing a settlement was not credible.
Appellant’s reliance on Arnaiz is misplaced. In Arnaiz, the appellate court held that the trial court had not abused its discretion in granting the motion to vacate dismissal on the ground that “the trial court could have inferred that Arnaiz was mistaken as to the County’s general intent to cooperate with Arnaiz as to the development.” (Arnaiz, supra, 96 Cal.App.4th at p. 1369.) However, as the Arnaiz court pointed out, it was required to “‘extend all legitimate and reasonable inferences to uphold the judgment.’” (Id. at p. 1368, quoting In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) In contrast to Arnaiz, here the trial court found that appellant was not mistaken about respondents’ intent, and this court cannot make a contrary factual finding.
Appellant also argues that the trial court erred in admitting evidence of settlement discussions.
Appellant sought to exclude evidence offered by respondents to show the status of settlement discussions when he filed the dismissals. This evidence included various e-mails that QAD’s counsel sent on May 18 and May 23 to appellant regarding settlement negotiations. Over appellant’s objection, the trial court admitted the evidence.
Settlement discussions are inadmissible to prove “liability” or the “invalidity of the claim or any part of it.” (Evid. Code, §§ 1152, subd. (a), 1154.) In reviewing a trial court’s determination as to the admissibility of evidence under Evidence Code section 1152, we apply the abuse of discretion standard. (Caira v. Offner (2005) 126 Cal.App.4th 12, 32 (Caira).)
Evidence Code section 1152, subdivision (a) states: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”
Here, when appellant brought his motion for relief under section 473, respondents did not offer the evidence of settlement negotiations, nor did the trial court consider it, to prove liability or the invalidity of the underlying claims. Instead, the issue was whether appellant’s claim that he was mistaken about respondents’ position and interest in settlement negotiations prior to and after the May 19 hearing was credible. The evidence of respondents’ statements that indicated it had no intention of engaging in further settlement discussions was relevant to show what was known to appellant when he filed his requests for dismissal. Thus, the trial court did not abuse its discretion in admitting this evidence.
Appellant also argues that “[i]f the dismissal[s] are reversed, QAD risks ‘liability’ in this very action, and if the dismissals are left in place, QAD escapes ‘liability’ in this instant action - the settlement discussions were meant to compromise such liability in this very action.” However, Evidence Code sections 1152 and 1154 do not exclude evidence of settlement negotiations that might ultimately have the effect of “escap[ing] liability.”
The cases upon which appellant relies do not compel a different result. In C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, the trial court excluded statements made by the plaintiff’s agent during settlement negotiations. (Id. at p. 13.) The defendant had sought to introduce the evidence to impeach testimony at trial regarding a defense theory. (Ibid.) The Supreme Court held that the evidence was properly excluded, because “the admission occurred during compromise negotiations in which both parties were discussing, and attempting to discover, the facts underlying their dispute.” (Ibid.) Similarly, in Caira, supra, 126 Cal.App.4th at pp. 32-36, the appellate court stated that the excluded e-mail evidence was “critical information in . . . resolving the parties’ many interrelated disputes” and that the offering party “sought admission of the e-mail to prove a claim that was specifically discussed in the e-mail.” (Id. at pp. 34, 36.) In Hasler v. Howard (2004) 120 Cal.App.4th 1023, the excluded evidence was offered to prove “an element of [a party’s] damages claim” in an underlying lawsuit. (Id. at p. 1026.) Thus, in each of these cases, the party offered evidence of settlement negotiations to prove some aspect of the underlying claims or defenses at issue.
Appellant also claims that the trial court erred in denying his request for a continuance to present additional evidence on the parties’ settlement discussions.
A party seeking a continuance must make a showing of good cause. (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 779.) We review the trial court’s denial of a request for a continuance under the abuse of discretion standard. (Id. at p. 784.) We will disturb the trial court’s determination only where there has been a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Here, the trial court denied appellant’s request for a continuance on the ground that the “information could have been presented in the course of either the motion itself or the reply papers.” Since appellant had the opportunity to offer responsive evidence in his reply papers and failed to do so, he did not establish good cause for a continuance. Accordingly, the trial court did not abuse its discretion in denying his request.
Appellant next claims that the trial court’s statement that he was trying to “delay the prosecution of this action” is “completely nonsensical.” He also claims that the trial court’s comment that he “did not want to go to trial” was “cruelly unkind,” and that the trial court’s “speculation . . . about . . . [his] supposed secret desire . . . regarding a deposition” was “highly prejudicial and a result of biased observations arising from accepting non-evidentiary insinuations by counsel for QAD . . . .”
Contrary to appellant’s claims, the record on appeal supports the trial court’s comments. After the consolidated action had been set for trial on June 12, respondents began efforts, which had begun years earlier, to obtain appellant’s deposition. However, when they could not obtain reach a voluntary agreement with him and trial had been set for June 12, they filed a motion for leave to take his deposition on April 20. On April 14, appellant told the trial court that he could not appear for a deposition on April 20, but could do so on May 9. The trial court then ordered that appellant appear on May 9. On May 8, appellant applied for an ex parte order excusing him from appearing on May 9. Based on his claim that he would appear on May 19, the trial court ordered him to appear for his deposition on that date. On May 18, appellant declined to confirm with QAD that he would appear for his deposition. After further discussions on that date, the parties believed that they had reached a settlement, which would be put on the record the following day. QAD told appellant that it expected him to proceed with the deposition if the settlement was not successfully placed on the record. On May 19, appellant appeared at the hearing by telephone and confirmed that he would not appear for a deposition. The matter was continued until May 24. On that date, the trial court set QAD’s motion for terminating sanctions or for an order compelling appellant’s deposition and monetary sanctions for May 30. Later, that afternoon, and on May 26, appellant filed his requests for dismissal. He then waited until November 27, the last day on which the trial court had jurisdiction, to bring his motion for relief. Thus, the record before us establishes that appellant repeatedly avoided having his deposition taken and delayed the proceedings.
Appellant also contends that the trial court erred in concluding that he had not exercised due diligence in bringing his motion for relief. He asserts that he was not required to bring the motion until “the last minute, precisely because he was ‘diligent’ in wanting to work out a settlement but was also ‘diligent’ in not being careless enough to miss the six-month statutory deadline.”
One of the requirements for relief under section 473, subdivision (b) is that the application “be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . was taken.” “Whether a party has acted diligently is a factual question for the trial court.” (Wang, supra, 158 Cal.App.4th at p. 1420, quoting Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528.)
Here, the dismissals were entered on May 24 and May 26, and appellant waited until November 27, which was the last day of the jurisdictional six-month time limit under section 473, subdivision (b), to file his motion for relief. Despite his claim that he dismissed the action because he believed it would encourage “a quick settlement,” appellant did not actively pursue a settlement. He communicated only twice with QAD during the six-month period. On June 5, he sent an e-mail in which he stated that the parties should “agree on a settlement contractual document” before discussing a settlement sum. QAD did not respond. On November 12, appellant sent a settlement demand, and again QAD did not respond. Rather than taking any action to determine whether respondents were interested in settlement, appellant concedes that he “worked diligently to think of ways to enhance such settlement.” Thus, the evidence supports the trial court’s finding that appellant did not act diligently in seeking to set aside the dismissals.
Appellant next challenges the trial court’s finding that the case would be subject to dismissal under section 583.310 even if it granted relief under section 473, subdivision (b).
Section 473, subdivision (b) provides that “this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” Section 583.310 requires that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.”
Here, appellant brought motions to set a trial date and to exclude time under section 583.340. On March 3, the trial court entered an order that stated in relevant part: “Plaintiff contends that additional time must be excluded for periods when it was impossible, impracticable or futile to bring the case to trial. Code Civ. Proc. § 583.340, subd. (c). Plaintiff’s request that the court find that time should be excluded pursuant to § 583.340, subd. (c) is DENIED. [¶] Excluding the periods when the jurisdiction of the court was suspended, the court finds that the trial must commence on or before June 14, 2006.” The trial court then set the trial for June 12.
Following the March 3 order, nothing occurred to extend the statutory deadline beyond June 14. After appellant requested dismissal on May 24 and May 26, the June 12 trial date was vacated. When appellant’s motion for relief was heard in January 2007, the statutory deadline for bringing his case to trial had expired almost seven months earlier. Even if the trial court had vacated the dismissals under section 473 and restored the action to the trial calendar, it would have then been required to dismiss the action under section 583.360.
Section 583.360 states: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
Appellant argues, however, that the trial court erred on March 3 in failing to further extend the time within which the action was required to be brought to trial. He claims that there were other circumstances that had made it “impossible, impracticable or futile” under section 583.340, subdivision (c) to bring the action to trial.
Even assuming that this issue falls within the order denying appellant’s motion to vacate his dismissals, it has no merit. A reviewing court presumes that the evidence supports the judgment, and thus the appellant has the burden of establishing that the evidence fails to do so. (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 564.) In the present case, appellant failed to include his motion, any opposition by respondents, and the reporter’s transcript for the hearing on this motion as part of the record on appeal. Since appellant has not met his burden to provide an adequate record, we are unable to review his claims. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Therefore, we must presume that the evidence supports the trial court’s March 3 order.
Appellant also raises other issues relating to whether the trial court had subject matter jurisdiction over QAD’s complaint and when discovery was “‘cut-off.’” He asserts that these issues may be raised in the present appeal, because “they not only affect the order refusing to set aside the dismissal, they would directly result in nullifying the dismissal in that, the decision to voluntarily dismiss depends in no small measure on the denial of a fair trial, denial of proper time for pre-trial preparation, forcing appellant into unnecessary and extra-jurisdictional mediations, denying an opportunity for discovery under erroneous orders deeming it to be ‘cut-off’ and forcing appellant to fight a multi-front war in violation of clear supreme court precedent.”
“It is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. . . . A willful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review . . . motions made prior to the dismissal. Because [the plaintiff] dismissed his remaining claims in this case without prejudice, the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal. By voluntarily dismissing the action without prejudice [the plaintiff] lost his ability to challenge the trial court’s interim orders.” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975, internal citations, quotation marks, and fn. omitted.)
Here, appellant lost his ability to challenge any interim orders when he voluntarily dismissed his action without prejudice. Thus, this court has no jurisdiction to review any issues relating to these orders.
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
Evidence Code section 1154 states in relevant part: “Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it.”