Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC085977, Jacqueline Connor, Judge.
Law Offices of Wilfred J. Killian and Wilfred J. Killian for Defendant and Appellant.
Law Offices of Phillip G. Samovar and Phillip G. Samovar for Plaintiffs and Respondents.
ARMSTRONG, Acting P. J.
This is an appeal from a trial court order denying appellant Barton Properties, Inc. relief from default under Code of Civil Procedure section 473, subdivision (b). We reverse.
All further statutory references are to that code.
Facts
Barton was the defendant in a lawsuit filed in June of 2005 by respondents Luba and Vladimir Tomalevska. Barton, which was represented by Richard Blaskey, failed to respond to discovery, failed to attend a settlement conference, and failed to attend hearings on an OSC re: sanctions. On January 10, 2007, the court granted the Tomalevskas' motion for terminating sanctions and entered a default against Barton, finding that it had a history of noncompliance with court rules and orders, and of failure to comply with discovery and a discovery order. The court later specified that Barton failed to appear on January 3, 2006, February 16, 2006, August 23, 2006, and October 18, 2006.
On March 7, 2007, new counsel substituted for Blaskey, and on March 22, 2007, less than three months after the default was entered, Barton moved to set aside the default under the mandatory provisions of section 473 subdivision (b). The motion was accompanied by the declarations of Blaskey, Barton president Stephen Selinger, and Barton's new counsel.
Blaskey declared that he had failed to timely respond to discovery requests and motions to compel, failed to pay sanctions, and failed to attend two hearings on an order to show cause re: sanctions. His inaction was the sole cause for the failure to attend, respond, or pay the court ordered sanctions and for the default. Barton itself was unaware of the court's orders or counsel's actions until January 15, 2007.
Selinger declared that in his numerous conversations with Blaskey, he was under the impression that Blaskey was properly representing Barton. He was not aware that Blaskey had failed to engage in or respond to discovery, or that he had failed to attend hearings, or that he had been sanctioned for failure to respond to discovery. He was informed of Blaskey's defalcations "in bits and pieces" on January 15, 2007, but even then was still unaware of the scope of the problem. He had attempted to gain Blaskey's assistance in vacating the default. Blaskey failed to file a motion, and although he said he would sign an affidavit, he did not do so until Selinger confronted him. Despite new counsel's request, Blaskey failed to forward the file. New counsel's declaration is similar. (During the April hearing, the court indicated that Barton had recently defaulted in other cases in which it was represented by Blaskey.)
In April, the court denied the motion and entered judgment in the amount of $100,000.
Barton moved under sections 657 and 663 for a new trial and to set aside the judgment. With the motion, Barton submitted supplemental declarations from Blaskey and from Selinger. Blaskey again declared that all failures to appear and sanctions were solely his fault, and not part of any plan of Barton's. The declaration also details the settlement negotiations, Blaskey's contacts with the Tomalevskas' counsel, the progress of the case in 2005 and 2006, and Blaskey's own schedule in 2006 and 2007, which included family medical emergencies. Selinger also filed a supplemental declaration, stating, in pertinent part, that Blaskey had worked for Barton for three years in various cases, and had never before been irresponsible.
The court denied the motions, finding no ground for new trial or to set aside the judgment. The court also found that "There is nothing to show that the Court's denial of mandatory relief under Code of Civil Procedure section 473(b) was contrary to the law," noting the evidence presented at the April hearing was the only relevant evidence and finding that the facts then presented were like the facts in Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, and that no evidence was presented to show that Barton was not responsible in whole or in part for the default, as in Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861.
Respondents moved to dismiss the appeal on the ground that appellant waived the right to appeal by satisfying the judgment. We take judicial notice of the documents and declaration attached to appellant's opposition to the motion, which indicate that money was paid with an express reservation of the right to appeal, and only so that the abstract of judgment would not cloud title to other properties it owned. "[C]ompliance or satisfaction that is compelled does not constitute a waiver of the right to appeal. Such a waiver is implied only where the satisfaction or compliance is the product of compromise or is coupled with an agreement not to appeal. (9 Witkin, Cal. Procedure, supra, Appeal, § 209, pp. 264-265; Reitano v. Yankwich (1951) 38 Cal.2d 1, 4; Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 745.)" (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1040.) The motion is denied.
Under the relevant portion of section 473, subdivision (b), "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."
We review the trial court's factual finding for substantial evidence (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 928) and cannot find such evidence for the trial court's finding here, that the default was not caused by Blaskey's neglect. Instead, the uncontradicted evidence was that Barton knew nothing of counsel's defalcations, and that the default was, simply, Blaskey's fault.
A comparison of the facts of Jerry's Shell, supra, 134 Cal.App.4th 1058, and Milton v. Perceptual Development Corp., supra, 53 Cal.App.4th 861 makes this clear.
In Jerry's Shell,the case was dismissed as a discovery sanction. Plaintiffs (there were several of them) had failed to respond to discovery, then failed to respond to defense counsel's letter inquiring about overdue responses, then failed to respond to the motion to compel, although plaintiff's counsel did take part in the hearing on the motion, which was granted. Plaintiffs' counsel soon asked defense counsel for more time, but then failed to file any responses at all. A second motion to compel was filed. It was not opposed, and it was granted. Some of the plaintiffs then did respond, but only with general objections and incomplete responses. Defense counsel wrote to plaintiff's counsel, who did not respond. A motion for terminating sanctions was filed. All but one of plaintiffs then responded, at least to some extent. Plaintiffs filed no written opposition, but plaintiffs' counsel was present at the hearing. Immediately after hearing that terminating sanctions would be imposed, plaintiffs' counsel stated "'I'll have to bring some other sort of motion to get that set aside.'" (Jerry's Shell, supra, 134 Cal.App.4th at p. 1074, fn. 13.) She did not do so for several months.
Plaintiffs' counsel's section 473 declaration spoke of delegated work, sudden hospitalizations, and law clerks who sent out the wrong documents. The declaration was refuted by defendants, which established that counsel was attending hearings in the case on dates at which she claimed to have been hospitalized, and that she had claimed different dates of hospitalization for the same problems (for instance, food poisoning) in a declaration in another case, in which different dates would better support the motion. On those facts, the trial court denied the relief despite the affidavit of counsel, and the Court of Appeal affirmed, finding that mandatory relief under section 473 was not available if an intentional strategic decision caused the default or dismissal to occur. (Jerry's Shell, supra, 134 Cal.App.4th at p. 1073.) The court noted that "While calling [counsel's] practice a 'strategy' is perhaps too generous a term there is no question that it resulted in the attorneys having considerable supplemental time to respond to discovery not available to practitioners who follow the rules, while generally risking nothing more severe than an order compelling responses that should have been provided months earlier or an issue sanction on a topic that might never have been proven at trial. When the ultimate sanction of dismissal inevitably reared its head, appellants' counsel's obvious plan was to claim attorney fault and revive the claims through a section 473(b) motion for relief." (Id. at pp. 1073-1074; see also Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 623 [substantial evidence for trial court finding that client implicated in discovery misconduct where counsel so testified, and where client and counsel had "credibility problems"].)
In Milton, supra, 53 Cal.App.4th 861, the defendants were at first represented by a lawyer, Hurst, who was both corporate counsel and a company officer, but later associated another lawyer, Hartley, who was to handle all procedural and discovery matters. The trial court granted relief under section 473, and we found substantial evidence for a trial court finding that counsel's misconduct caused the entry of default and default judgment. We noted that "The discovery requests and motions to compel which resulted in the defaults and default judgments all occurred while Hartley was attorney of record with the responsibility for all procedural and discovery matters. Hurst, who was not handling those matters, had been assured repeatedly by Hartley that all was well. Even if Hurst should have known of Hartley's defalcations, Hartley's omissions still remain as a proximate cause, if not the only one, of the defaults and default judgments." We also found substantial evidence that the clients themselves had not caused the default, in the evidence that both Hartley and Hurst declared that the clients cooperated in discovery, and the clients' uncontradicted assertion that they did not learn of the default until months after it occurred. (Id. at p. 867.)
This case is like Milton, and unlike Jerry's Shell. No evidence impeached Selinger's declaration that he did not know that Barton was failing to respond to discovery or to attend hearings, or Blaskey's declaration that the fault was his and that his client was in the dark. Nothing in the record suggests that Blaskey was engaged in any strategy, much less that Barton was. It is true that Blaskey did not declare, as did the lawyer in Milton, that Barton had cooperated with discovery, but the difference is not meaningful, because nothing indicates that Blaskey ever gave Barton a chance to cooperate.
Barton's motion under section 473 should have been granted. We remand this case to the trial court with directions to enter such an order, and thus need not address Barton's additional contention, that the damages awarded were excessive.
Disposition
The judgment in favor of respondents is reversed, and the matter remanded to the trial court so that it may enter a new and different order on appellant's motion under section 473. Appellant to recover costs on appeal.
We concur: MOSK, J., KRIEGLER, J.