Opinion
A129201
10-25-2011
ANNE W. THAYER, Plaintiff and Appellant, v. BENJAMIN FRANKLIN PLUMBING et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. CGC 09-486492)
Anne W. Thayer (Anne) alleged seven causes of action against Benjamin Franklin Plumbing and Dan Gagne, owner of Benjamin Franklin Plumbing (collectively, the plumbers), arising from a contract to deliver and install a tankless on-demand water heater. She alleged in her pleading that the contract was between the plumbers and her but the contract attached to the pleading established that the contract was signed by her husband, Ernest M. Thayer (Ernest), not Anne.
The plumbers demurred to Anne's complaint and the lower court sustained the demurrer with leave to amend. The court explained that Anne did not have standing because the plumbers entered into the contract with Ernest and Anne was not a party to the contract. Anne did not amend the pleading within the specified time and, subsequently, the court granted the plumbers' request to dismiss Anne's lawsuit pursuant to Code of Civil Procedure section 581, subdivision (f)(2). Anne moved for relief from the judgment pursuant to section 473, subdivision (b), which the trial court denied.
All further unspecified code sections refer to the Code of Civil Procedure.
On appeal, Anne contends that the lower court should not have sustained the demurrer, should not have dismissed her lawsuit pursuant to section 581, subdivision (f)(2), and/or should have granted her relief from the judgment under section 473. We are not persuaded by her arguments and affirm the judgment.
BACKGROUND
On March 23, 2009, Anne filed a complaint against the plumbers for breach of contract, fraud, violating the Consumers Legal Remedies Act (Civ. Code § 1750 et seq.), violating Business and Professions Code section 17500, violating Business and Professions Code section 17200, and money had and received. In her seventh cause of action, she requested declaratory relief against the plumbers. Anne alleged that in 2005, the plumbers told her that if she authorized them to replace the water heater and tank in her home with a tankless " 'on demand' water heater," that they would refund her money if she were not 100 percent satisfied with the service provided. She further asserted that she entered into a contract with the plumbers to replace the water heater and tank in her home with a tankless " 'on demand' " water heater.
The plumbers replaced her water heater with a "tankless 'on demand' water heater" but, according to Anne's complaint, it did not work properly and the plumbers admitted that the installation was defective. The plumbers installed another water heater in Anne's home. Subsequently, on March 25, 2006, Anne notified the plumbers in writing that she was dissatisfied with the service they had provided and that " 'the heater, the gas line, and the manual gas control valve" that they had installed were too small. She added, that the plumbers also had improperly "commonly vented the Takagi heater" with her furnace. She requested a refund of $3,274.20; the sum paid the plumbers for the delivery and installation of the water heater. The plumbers refused to refund the money.
Anne attached a copy of the contract with the plumbers to her pleading. The contract did not mention Anne, but named Ernest as the customer and Ernest, not Anne, signed the agreement. Ernest is Anne's husband and the attorney representing Anne in this lawsuit.
On July 9, 2009, the plumbers demurred to Anne's complaint. The plumbers asserted, among other things, that Anne was not a party to the contract and, since all of her causes of action were based on the contract, she did not have standing. On September 24, 2009, the court filed its order sustaining the plumbers' demurrer with 10 days leave for Anne to amend her pleading to establish standing. The court explained, "No statutory authority or case law supports contractual rights as community property." The plumbers filed and served by mail to Anne's counsel the notice of entry of order on October 5, 2009.
On October 23, 2009, the plumbers filed an ex parte application for the dismissal of Anne's complaint pursuant to section 581, subdivision (f)(2), because she had not filed an amended pleading. In their application, they stated that Anne had until October 20, 2009, to file the amended pleading and, on this date, after 4:00 p.m., Ernest, Anne's counsel, called their counsel asking them to agree to extend the time for her to file her amendment. Counsel for the plumbers indicated that she told Ernest that she could not unilaterally extend the time limit proscribed by the court order.
Anne filed opposition to the plumbers' ex parte application for dismissal. She stated that the "physical incapacitation" of her attorney, Ernest, prevented him from appearing on October 23, 2009, to contest the ex parte application. She also attached a letter from the plumbers' counsel dated October 21, 2009, which was a written response to Anne's request on October 20 to extend the time to file her amended pleading. The letter stated the following: "We write in response to your phone call of after 4:00 p.m. yesterday afternoon, wherein you requested an extension of time to file Plaintiff's first amended complaint. As you are aware, the Court sustained Defendants' demurrer to the complaint on September 2, 2009[,] by uncontested tentative ruling. The formal order after hearing was executed and entered by the Court on September 24, 2009, and this office filed and served the Notice of Entry of Order on October 5, 2009. Your client has thus had more than 45 days to prepare the amended complaint; you provided no explanation for your failure to file the amended pleading within that time, or why you waited until after 4:00 p.m. on the day the pleading was due to request relief from the order. My client will not (and, notably, cannot) grant an extension of the Court's order requiring the filing of the amended complaint by October 20, 2009."
The court apparently denied the plumbers' first ex parte request for dismissal because of Ernest's unavailability. The court's ruling is not in the record on appeal.
Documents submitted in the trial court by both the plumbers and Anne indicate that the trial court denied the plumbers' ex parte application on October 23, 2009, because of Ernest's unavailability on that date.
The plumbers filed a second ex parte application for dismissal under section 581, subdivision (f)(2) and California Rules of Court, rule 3.1320(h), on October 30, 2009. Ernest filed opposition and declared, "The only amendment needed to satisfy the court's concern is a one sentence addition [to the pleading] wherein plaintiff alleges that the real property to which the contract refers is community property owned jointly by plaintiff and her husband, and that he contracted with defendants while acting as her authorized agent." He added: "I drafted that amendment, and it was ready to be timely served and filed on the morning of October 20. However, I had been evaluating the desirability of adding a new cause of action to the complaint, and during the course of the day on October 20 I concluded that I should do so." He avowed that he called counsel for the plumbers on October 20 and requested a stipulation to a 15-day postponement for the filing of Anne's amended complaint. He stated that counsel refused and told him that the amended complaint needed to be filed within the next few minutes in order to be timely. He reported that counsel's representation that he requested an extension to the deadline after 4:00 p.m. on October 20 was false. He requested a continuance until November 16 because, he asserted, he would have his phone bill by this date and would be able to prove that he telephoned counsel for the plumbers "well before, rather than after, 4:00 p.m. on October 20."
On October 30, 2009, the court granted the plumbers' application for dismissal. It dismissed Anne's complaint with prejudice and entered judgment in favor of the plumbers. On November 2, 2009, an order was entered dismissing Anne's action against the plumbers.
On November 17, 2009, Anne moved for a new trial pursuant to section 659. A little more than one week later, on November 25, 2009, Ernest applied ex parte for an order extending the time to file Anne's papers in support of her motion for a new trial. The court granted the application and extended the deadline to December 11, 2009. Ernest filed another ex parte application requesting another extension of time. He asserted that he was waiting for phone records to establish the time he called opposing counsel with his request for the plumbers to extend the time for Anne to file her amended complaint. Later, Ernest received the phone records but they showed he called opposing counsel after 4:00 p.m., on October 20, 2009. Consequently, Anne abandoned her motion for a new trial.
On January 15, 2010, the court entered the judgment of dismissal. The court ordered that Anne "take nothing in this action," and the plumbers "recover" from Anne "costs of suit in the sum" of $1,041.00.
On April 28, 2010, Anne moved for mandatory and discretionary relief pursuant to section 473, subdivision (b). Anne based her motion "upon the fact that the dismissal and judgment were taken against her through the mistake, inadvertence, surprise or neglect of her attorney." She explained Ernest's behavior as being a result of medical problems he was experiencing.
In support of the request for relief, Ernest declared that he had been in the hospital at the time the plumbers appeared on their ex parte application for dismissal on October 23, 2009. He claimed that when he asked the plumbers' counsel to extend the time for filing Anne's amended pleading, he believed that he had made the request earlier in the day and mistakenly believed that he would have time to file the amended pleading if the plumbers denied his request. He added: "During the three months which followed my learning that I had committed this serious error, I became aware of other instances in that period in which I had exhibited loss of memory, loss of perception, and loss of good judgment. It occurred to me that these simply were losses which normally accompany the attainment by human beings of my age of 79 years." He opined that his behavior leading to the dismissal was due to the detrimental effects certain drugs were having on him.
Ernest's physician, Dr. Frederic Whinery, also provided a declaration. Dr. Whinery reported: "On February 24, 2010, Ernest Thayer sought my diagnosis regarding complaints of his loss of memory, of perception, and of good judgment. I examined him, and reviewed his regimen of prescription drugs. I concluded, and told him, that his taking of two specific drugs might be the cause of the above-listed complaints. I advised him to eliminate one of those drugs from his treatment, and to ascertain thereafter whether or not he had experienced any improvements. Mr. Thayer later reported to me that after having stopped taking one of those drugs, he experienced substantial improvements in his memory, perception and judgment. In my opinion, Mr. Thayer's dropping of that drug from his diet is probably the cause of his improved condition."
Anne attached her proposed amendment to her complaint to her request for relief pursuant to section 473, subdivision (b). The proposed amendment to Anne's complaint stated that she was married to Ernest and that they together owned as community property the water heater installed by the plumbers. She alleged that Ernest signed the contract with the plumbers "on behalf, both of himself and of Anne Thayer, as co-owner." She added, "If the court nevertheless concludes that Anne Thayer does not have standing to prosecute this action, or that no benefits which may accrue by that prosecution can inure to her benefit as co-owner, Anne Thayer then prays leave to substitute Ernest for Anne as the plaintiff in this action."
The court held a hearing on Anne's motion for relief on June 8, 2010. The court ruled at the hearing "that the showing is insufficient that plaintiff's counsel acted at all diligently under these circumstances. And, in fact, I don't think I have even seen a proposed amended pleading from plaintiff's counsel." Ernest told the court that it was attached and the court noted it. The court concluded that relief was not warranted and denied the plumbers' request for sanctions. The court filed its order denying Anne's request for relief pursuant to section 473, subdivision (b), on June 8, 2010.
On July 26, 2010, Anne filed a notice of appeal from the judgment and from the order of June 8, 2010, denying her motion for relief pursuant to section 473, subdivision (b).
On appeal, both Anne and the plumbers filed opening briefs in this court. Anne's reply brief was due on June 8, 2011. Five days after the deadline had lapsed, Anne requested that we extend the time for her to file her reply brief. We granted her request and set the new deadline for July 11, 2011. On July 15, 2011, Anne requested a second extension of time, which we denied on July 19, 2011.
DISCUSSION
I. Sustaining the Demurrer
All of the claims in Anne's complaint were related to her dissatisfaction with the installation of her water heater pursuant to the contract between Ernest and the plumbers. Although her pleading alleged that the contract was between the plumbers and her, the contract attached to the pleading established that Ernest, her husband and the attorney representing her in this lawsuit, was the customer named in the contract and the party who executed the contract. Anne was not named in the contract; she also did not sign the contract.
The trial court found that Anne did not have standing to sue the plumbers and sustained the plumbers' demurrer against her complaint with leave to amend. Whether a party has standing to sue may be raised by demurrer. (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 481.)
Anne maintains the lower court erred in sustaining the plumbers' demurrer. Since the trial court sustained the plumbers' demurrer with leave to amend, and Anne's lawsuit was subsequently dismissed because she failed to file a timely amendment, we need not consider whether she could have amended the complaint to state a cause of action. Here, the sole issue is whether Anne's pleading sufficiently set forth a cause of action. "A demurrer tests the legal sufficiency of factual allegations in a complaint." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.) "On appeal, a plaintiff bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law. This court thus reviews the complaint de novo to determine whether it alleges facts stating a cause of action under any legal theory." (Id. at p. 43.)
Anne does not dispute that all of her claims were based on the contract between Ernest and the plumbers for the installation of the water heater. Indeed, a review of the pleading establishes that all seven of her causes of action were based on the contract between Ernest and the plumbers to install the water heater. Anne's first cause of action was for breach of this contract and the second claim alleged fraud in the making of this contract.
The third, fourth, and fifth causes of action alleged violations of a statute. Anne claimed in her third cause of action that the plumbers violated the Consumer Legal Remedies Act. This Act provides that a consumer who suffers damage as a result of a forbidden practice may bring an action to recover damages or other authorized relief. (Civ. Code, §§ 1760, 1770, 1780, 1781, subd. (a); Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437-438.) A " 'consumer' " is defined as "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes." (Civ. Code, § 1761, subd. (d).) According to the contract attached to the pleading, Ernest, not Anne, was the purchaser of the water heater. A third-party beneficiary of a contract for such goods or services is not a "consumer" within the meaning of the Consumer Legal Remedies Act. (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960.) Similarly, since Anne was not the purchaser of the water heater, she could not assert that she suffered an injury as required under the Business and Professions Code sections 17200 and 17500. Thus, Anne could not state a cognizable claim under these statutes.
Anne's sixth cause of action was for common count for money had and received. She alleged that she was entitled to the money she paid for the water heater. This claim was based entirely on her breach of contract claim. "[I]f plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count." (Hays v. Temple (1937) 23 Cal.App.2d 690, 695.)
In her seventh cause of action, Anne asked for declaratory relief and stated that an actual controversy existed between the plumbers and her because they were not entitled "to bill, collect or retain for their goods any amounts of money from her." Since Anne was not the purchaser of the water heater, the lower court correctly determined there was not an actual controversy. Furthermore, the language of the proposed declaratory relief cause of action shows that it was wholly derivative of the other causes of action and therefore the demurrer was properly sustained as to this claim. (See, e.g., Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)
The contract attached to Anne's pleading establishes that she was not named in the contract and did not sign the contract. Thus, she could not be an injured party as a result of a breach of contract or a deficient performance under the contract. "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute." (§ 367.)
Anne contends that the Family Code states that contractual rights are community property. (Fam. Code, §§ 721, 751, 760; see also Vick v. DaCorsi (2003) 110 Cal.App.4th 206.) She maintains that Ernest was acting as the manager of their real property when he entered into the contract with the plumbers and therefore both Anne and he were obligors and beneficiaries under the contract. She claims that she had standing as both an owner of the property and as a third party beneficiary.
Anne's complaint did not allege that she had contractual rights on the basis of her community property interest in the real property; nor did it allege that she was a third party beneficiary. Rather, she claimed that she entered into a contract with the plumbers to replace the water heater and tank in her home with a tankless " 'on demand' " water heater. The attached contract established that she did not enter into a contract with the plumbers; thus, the lower court properly found that she did not have standing to sue on the contract.
We need not address whether Anne could have stated a claim based on her alleged community property interest. Whatever Anne's property rights were with respect to the water heater, the fact remains that, contrary to her allegations in her pleading, the contract attached to her pleading showed that she was not a party to the contract. (See, e.g., Austero v. National Cas. Co. (1976) 62 Cal.App.3d 511, 517.) If the provisions of an exhibit are inconsistent with or contradict the allegations of the complaint, the facts in the exhibit control. (White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)
Furthermore, Anne's community property argument lacks merit. The Family Code statutes do not address contractual rights but are concerned with property rights of married couples. "Someone who is not a party to [a] contract has no standing to enforce the contract or to recover extra-contract damages for wrongful withholding of benefits to the contracting party." (Hatchwell v. Blue Shield of California (1988) 198 Cal.App.3d 1027, 1034.) In Hatchwell, a husband and wife sued the insurer over an alleged failure to pay medical benefits to the insured husband. (Id. at pp. 1029-1030.) The wife asserted that she had been part of the policy decision and that premiums were paid from community funds. (Id. at pp. 1031-1032 & fn. 4.) The court rejected the wife's argument that she had standing to sue for breach of contract or bad faith based on the denial of health care benefits to her insured husband. (Id. at p. 1034.) The court held that only the husband, the party to the contract, could make any claims against the insurance company.
Accordingly, we conclude that the lower court's ruling that sustained the plumbers' demurrer against Anne's complaint against them was not error.
II. Dismissal Under Section 581, Subdivision (f)(2)
Subject to an exception not applicable here, the trial court may dismiss a defendant after the court sustains a demurrer with leave to amend, if the plaintiff does not amend within the time allowed and either party moves for dismissal. (§ 581, subd. (f)(2); Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613-614 (Leader).)This provision " 'gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.' " (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.) Rules of court expressly authorize an ex parte procedure for obtaining a dismissal under section 581, subdivision (f)(2). (Cal. Rules of Court, rule 3.1320(h).) We review a trial court's decision to dismiss an action under section 581, subdivision (f)(2) for an abuse of discretion. (Leader, at p. 612.)
On September 24, 2009, the court filed its order sustaining the plumbers' demurrer against Anne's complaint with 10 days leave for Anne to amend. The plumbers served notice of the entry of the order on October 5, 2009, and the amended pleading had to be filed in the court by October 20 in order to be timely. The trial court denied the plumbers' initial ex parte request to dismiss on October 23, 2009, but granted their subsequent request on October 30, 2009. Anne had not amended her pleading by October 30, 2009, which was well beyond the time allowed for amending her complaint.
On appeal, Anne contends that the trial court erred in failing to give her more time to submit an amended complaint. She asserts that the court refused to overlook a default of "a few minutes." She claims that her delay was brief and inconsequential. (See Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 872.)
Anne's argument is confusing because the relevant date is not when she asked opposing counsel to extend the time for her to file her amended complaint, but when she actually asked the court for permission to file her untimely amendment or when she submitted her proposed amendment to the court. After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (§§ 472, 473; Leader, supra, 89 Cal.App.4th at p. 613.) Here, she never asked the court for permission to file her late amendment.
Anne did not submit to the lower court a proposed amendment until April 28, 2010, when she sought relief pursuant to section 473, subdivision (b). She did not attach a proposed amendment on October 23, or October 30, 2009, when opposing the plumbers' two motions for dismissal. Contrary to Anne's argument in this court, her delay in submitting her proposed amendment in the trial court was not brief.
Anne's reliance on Harlan v. Department of Transportation, supra, 132 Cal.App.4th 868 is unavailing. In Harlan, the appellate court reiterated the rule that a trial court has discretion to dismiss a complaint when the plaintiff fails to amend within the time allowed; it noted, however, that the court also has discretion to accept a late amendment. (Id. at pp. 872-874.) The fact that the reviewing court in Harlan concluded that the lower court did not abuse its discretion when it accepted a late amendment does not have any bearing on the present situation where the lower court exercised its discretion in dismissing Anne's complaint. Furthermore, unlike the situation in Harlan, Anne had not submitted a proposed amendment to the trial court at the time it dismissed her action.
Anne also claims that she needed more time to file her amended complaint because she had to subpoena the record from AT&T to determine what time of the day it was when she requested an extension of time to file her amendment from opposing counsel. This argument has no merit. The information she wanted from AT&T had no bearing on her claims against the plumbers and her amendment could have been filed prior to her receiving these records.
Here, Anne did not amend her complaint within the time allowed after the trial court sustained the plumbers' demurrer with leave to amend. When the plumbers first asked for a dismissal on October 23, 2009, the trial court denied the motion without prejudice. From October 23 until October 30, 2009, when the plumbers submitted their second request for a dismissal, Anne did not request permission to file a late amendment and did not submit to the court a proposed amendment. Anne did not file a timely amendment to her complaint after the lower court had sustained the plumbers' demurrer with leave to amend, and the trial court therefore properly dismissed her lawsuit after the plumbers moved ex parte for dismissal pursuant to section 581, subdivision (f)(2).
This pattern displayed by Anne in the lower court of ignoring deadlines has been repeated in this court. In this court she asked permission to file a late reply brief after the time for filing had expired. We granted that request and set the new deadline for more than one month later than the original deadline. Four days after the new deadline of July 11, 2011, Anne requested a second extension of time to file her reply brief.
III. Denial of Anne's Motion for Relief
A. Section 473, Subdivision (b)
On April 28, 2010, Anne moved for relief pursuant to section 473, subdivision (b). She claimed that she was entitled to both mandatory and discretionary relief under this statute based on "the mistake, inadvertence, surprise or neglect of her attorney[,]" Ernest. On appeal, she challenges the lower court's denial of this motion.
Section 473, subdivision (b) provides in pertinent part: "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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." B. Mandatory Relief from Default
"[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief." (Leader, supra, 89 Cal.App.4th at p. 612.) The applicability of the mandatory relief provision is a question of law subject to de novo review, unless the determination turns on disputed facts. (Ibid.)We review for substantial evidence the trial court's findings on disputed facts. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.)
"The mandatory relief provision of section 473 [, subdivision] (b) is a 'narrow exception to the discretionary relief provision for default judgments and dismissals.' [Citation.] Its purpose ' "was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys." ' " (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) "Section 473, subdivision (b) was never intended to be a 'catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.' " (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483.)
Appellate courts have applied the mandatory relief provision of section 473, subdivision (b) only to dismissals that are the procedural equivalent of a default. (See, e.g., Leader, supra, 89 Cal.App.4th at pp. 618, 629; Gotschall v. Daley, supra, 96 Cal.App.4th at p. 484 [mandatory provision does not apply to a dismissal or a judgment that results from counsel's failure to designate an expert witness]; Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082 [mandatory relief not available for dismissal under sections 583.210 and 583.250 for failure to serve a complaint within three years]; Peltier v. McCloud River R.R. County (1995) 34 Cal.App.4th 1809 [mandatory relief not applicable to discretionary dismissal for failure to prosecute].)
Leader, supra, 89 Cal.App.4th 603 addressed the application of the mandatory provision of section 473, subdivision (b) following a dismissal of the lawsuit pursuant to section 581, subdivision (f)(2). In Leader, the plaintiffs did not timely file an amended complaint following a sustaining of a demurrer against their third amended complaint, and later sought to excuse the failure based on counsel's declaration that he had "misplaced" client materials necessary to remedy the pleading deficiencies. (Leader, at pp. 607-609.) The trial court granted the defendants' motion to dismiss under section 581, subdivision (f)(2) and, subsequently, denied the plaintiffs' request for relief under the mandatory provision of section 473, subdivision (b). (Leader, at p. 607.)
The court in Leader held that a plaintiff may not obtain mandatory relief from a dismissal based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, "at least 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, supra, 89 Cal.App.4th at p. 620.) The court compared the situation before it to discretionary dismissals for delay in prosecution: " ' "[V]irtually all such dismissals are attorney caused and such a construction [interpreting the mandatory provision of section 473 to encompass such dismissals] would result in a disfavored repeal of the discretionary dismissal statute[s] by implication." ' [Citation.] 'This conclusion is consistent with the narrow view of the Legislature's intent which appellate courts have taken, i.e., that the section's purpose was simply "to put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action." ' " (Ibid.)
Here, the plumbers moved for dismissal pursuant to section 581, subdivision (f)(2). Thus, under the holding in Leader, the mandatory provision of section 473, subdivision (b) does not apply and the lower court correctly denied her motion for relief.
Anne attempts to distinguish the facts of the present case from those in Leader by arguing that the plaintiffs in Leader had failed to file a fourth amended complaint, while this was her first amendment that had not been timely filed. She also emphasizes that the action in Leader had been pending for nearly six years whereas her lawsuit had been pending for little more than seven months. She further differentiates the two situations by pointing out that the plaintiffs in Leader moved for relief only under the mandatory provision while she moved under both the mandatory and discretionary provisions.
The facts stressed by Anne as distinguishing the present case from Leader are not significant. Here, as in Leader, the declarations of Ernest and his doctor concerning his neglect and delay "presented no answer to the issues posed" by the plumbers' demurrer. (See Leader, supra, 89 Cal.App.4th at p. 616.) The Leader court held that the mandatory provision of section 473, subdivision (b) did not apply because a dismissal pursuant to section 581, subdivision (f)(2) was not like a default judgment. (Leader, at p. 620.)
Furthermore, Ernest filed on behalf of Anne opposition to the plumbers' motions to dismiss, and the trial court considered the reasons for the delay in filing an amendment. Indeed, the court denied the plumbers' first request based on Ernest's assertion that he could not be present for the hearing on October 23, 2009. "The decisions interpreting the amended mandatory relief provision as it pertains to dismissals indicate that relief is not allowed where . . . the statutes governing the exercise of the court's discretion in the rulings leading to the dismissal require the court to evaluate the reasons for delay, and counsel's neglect did not prevent the plaintiffs from presenting those reasons." (Leader, supra, 89 Cal.App.4th. at p. 617.)
The present case is not like a default judgment. Ernest on behalf of Anne submitted his arguments to the trial court and the trial court evaluated the reasons for Anne's delay in filing an amended pleading. "Having considered the reasons for [Anne's] delay in exercising its discretion under [section 581, subdivision (f)(2)], it would be an 'absurd result' indeed to 'have the case reinstated based on the same facts offered, but discarded, in the hearing on the request to dismiss.' " (Leader, supra, 89 Cal.App.4th at pp. 619-620.) Ernest's conduct did not deprive Anne of her day in court. "[T]he 'day in court' envisioned . . . is not a guaranteed trial on the merits, but merely the opportunity to appear and present evidence and argument in opposition to the motion to dismiss. There is no question that [Anne] availed [herself] of that opportunity. [Anne is] not entitled to mandatory relief under section 473, subdivision (b)." (Leader, at p. 621.)
Thus, the holding in Leader, supra, 89 Cal.App.4th 603 applies and the mandatory relief provision under section 473, subdivision (b) does not apply. C. Discretionary Relief from Default
A trial court's ruling on a discretionary motion for relief under section 473, subdivision (b) is reviewed for an abuse of discretion. (Henderson v. Pacific Gas & Electric Co., supra, 187 Cal.App.4th at p. 230.) To qualify for discretionary relief under section 473, subdivision (b), "the party seeking relief must show (1) a proper ground for relief, and (2) 'the party has raised that ground in a procedurally proper manner, within any applicable time limits.' " (Henderson, at p. 229.)
A party seeking discretionary relief under section 473, subdivision (b), based on attorney neglect "must demonstrate that such mistake, inadvertence, or general neglect was excusable 'because the negligence of the attorney . . . is imputed to his client and may not be offered by the latter as a basis for relief.' " (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 (Carroll).) Neglect is excusable only if " 'a reasonably prudent person under the same or similar circumstances' might have made the same error." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) "In other words, the discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' " (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.)
In addition to the mandatory attorney fault provisions of section 473, subdivision (b), which was adopted by the Legislature in 1988 after Carroll was decided, another narrow exception to the general rule that an attorney's neglect is imputed to the client is when the attorney's conduct amounts to "positive misconduct[.]" (See Carroll, supra, 32 Cal.3d at p. 898.) Positive misconduct occurs when the attorney repeatedly fails to take any action, not when the action falls far below the standard of care. (See, e.g., Daley v. County of Butte (1964) 227 Cal.App.2d 380, 391-392 [counsel, among other things, inexplicably failed to serve process, appear at successive pretrial conferences, or communicate with the court, his client, and other counsel]; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 354 [positive misconduct where, after agreeing to interpose defense in cross-action on guaranty, attorney failed to file appearance; failed to take action despite actual notice of default entry; failed to appear at trial notwithstanding assurances to client; and failed to take action to relieve client from $50,000 judgment]; Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301 [attorney failed to notify client of new trial date or appear at trial; after client learned of adverse judgment and contacted attorney, attorney promised to seek to have judgment set aside, but never contacted client again].)
Here, Ernest did not abandon Anne or essentially stop providing legal counsel. He filed opposition to the plumbers' motions, filed a motion for a new trial, requested relief from the judgment, and appealed the judgment. Rather than abandoning Anne, he displayed a disregard for deadlines in both the trial court and this court. Ernest's disregard for the deadline, lack of diligence, and inexcusable failure to request from the court permission to file an untimely amendment were acts of negligence that were not excusable as a " 'a reasonably prudent person under the same or similar circumstances' " would not have acted in this manner. (Bettencourt v. Los Rios Community College Dist., supra, 42 Cal.3d at p. 276.) We therefore conclude that the lower court did not abuse its discretion in refusing to grant Anne's request for relief from the judgment.
DISPOSITION
The judgment is affirmed. Anne is to pay the costs of appeal.
Lambden, Acting P.J. We concur: Richman, J. Sepulveda, J.
Associate Justice, Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
--------