NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 & County of San Francisco Super. Ct. No. CGC-11-516226)
This is a personal injury action against defendant San Francisco Forty Niners, Ltd. arising out of an assault after a professional football game. After almost two years of litigation and only weeks before trial, plaintiff Daniel Long filed the same claims in federal court and voluntarily dismissed this state proceeding. The district court subsequently dismissed his federal action, however, for lack of subject matter jurisdiction. Plaintiff then filed a second action in superior court, to which defendant demurred on statute of limitations grounds. Facing the possible dismissal of this third action, plaintiff moved to set aside the voluntary dismissal of this case, pursuant to Code of Civil Procedure section 473. Defendant's demurrer was sustained and plaintiff's motions for relief from dismissal and for reconsideration were both denied. Plaintiff appeals from the denials of relief from dismissal and of reconsideration. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Initial State Complaint and the Federal Action
On August 20, 2011, after attending a Forty Niners/Raiders professional football game at Candlestick Park, plaintiff was shot by an unknown assailant in the parking lot. On November 30, 2011, he filed this case against defendant. After almost two years of intensive litigation, plaintiff's counsel, Geoffrey Becker, learned that defendant had changed its corporate form from a California limited partnership to a Delaware limited liability company (the LLC). Viewing this as an opportunity to sue defendant's general partner John York (over whom the superior court lacked jurisdiction), plaintiff filed the same claims in federal district court against the LLC and John York, alleging diversity of citizenship.
In response to the federal case, defense counsel sent a letter to Becker, challenging the viability of the federal case on several, nonjurisdictional grounds and urging plaintiff to try his claims in this proceeding. Plaintiff elected, instead, to remain in federal court and dismissed this action. Thereafter, defendant offered to settle the federal case and, when the offer expired, it moved to dismiss the federal case (again, on nonjurisdictional grounds).
Sua sponte, the federal district court issued a series of orders inquiring into the citizenship of the LLC for purposes of diversity jurisdiction. Eventually defendant divulged that the LLC's sole member, a limited partnership, had two limited partners, Gideon Yu and Mark Wan, both California residents. As there was not complete diversity, the District Court dismissed the federal case without prejudice for lack of subject matter jurisdiction. B. The Second State Complaint and Defendant's Demurrer
Although defendant's ownership information was generally not publicly available, the District Court noted that the "Front Office" section of the San Francisco 49ers' website had disclosed Mr. Wan as "Ownership."
Plaintiff responded by filing a new complaint (with the same allegations) against the LLC, again in superior court. Because this complaint was filed more than two years after the alleged attack, defendant demurred to all but one of the causes of action as time-barred. Plaintiff opposed, citing Addison v. State of California (1978) 21 Cal.3d 313 (Addison) for the proposition that the statute of limitations was equitably tolled while the federal case was pending. C. Motion for Relief from Dismissal
With his second state case in jeopardy, plaintiff sought to resuscitate this case, filing a motion to set aside the voluntary dismissal due to "mistake" or "inadvertence." He failed, however, to state whether he sought discretionary and/or mandatory relief. His memorandum of points and authorities alluded to three different legal theories for relief (mistake, inadvertence, and a good faith mistake of law) and multiple factual "errors," but failed to clearly explain his theory for relief or to cite any supporting legal authority other than "Code of Civil Procedure section 473."
Although defendant objected to the vagueness of plaintiff's arguments, plaintiff's reply did not provide any clarity. It merely reasserted plaintiff's contention that Becker had understandably but erroneously inferred from the defendant's litigation positions that there was complete diversity and, thus, that it was safe to dismiss this case. D. The Hearing on the Demurrer and Motion for Relief from Dismissal
In two footnotes, plaintiff suggested yet another theory, that his counsel may have erroneously relied upon the equitable tolling doctrine, under Addison, supra, 21 Cal.3d 313, to save the second state court suit, but he then reserved that issue for a future motion in the event the demurrer was ultimately sustained. Becker, however, expressly declined to admit error on this theory.
The court heard the motion for relief from dismissal and the demurrer together. Becker asked to start with the demurrer. He further requested that, if the court was inclined to sustain the demurrer, it continue the motion for relief so that he could supplement his submission to add a new mistake, his reliance on Addison and equitable tolling. After hearing argument on the demurrer, the court took the matter under submission and turned to plaintiff's motion for relief from dismissal, without ruling on the continuance.
The docket does not reflect that plaintiff filed any written application for a continuance, or that the court ruled on plaintiff's oral request.
In support of the motion for relief, Becker argued that he was not required to demonstrate an "excusable mistake" to obtain relief, but did not explain the basis for this contention or cite to any legal authority. He said that the motion was based on his "inadvertence" in relying on defendant's failure to object to federal jurisdiction. Then, he identified a new error, his reading of Addison to toll the statute of limitations, which he had belatedly raised on reply and then expressly reserved. Despite having reserved this argument for a future motion, Becker contended his reading of Addison was in good faith and excusable as it concerned a difficult legal issue which he likened to the "rule against perpetuities." When the court challenged the sufficiency of his showing for relief, generally, Becker pivoted back to his mistaken belief in diversity jurisdiction: "I thought there was jurisdiction. Guess what? There wasn't jurisdiction. That's a mistake and the declaration clearly addresses that." E. Trial Court Rulings on Demurrer and Motion for Relief from Dismissal
The trial court sustained the demurrer without leave to amend, and without leave to amend. On the statute of limitations issue, the trial court rejected equitable tolling, finding that plaintiff's litigation strategy was legally and factually groundless and not in good faith. The second state court case was dismissed.
The trial court also denied plaintiff's motion for relief from dismissal. It denied mandatory relief on two grounds: (1) such relief is not available for voluntary dismissals and (2) counsel had not provided a "straightforward admission of fault attesting that the mistake or inadvertence was the moving party's responsibility." Then, in addressing discretionary relief, the court found that Becker's "mistake" flowed from his unjustifiable and inexcusable ignorance of Code of Civil Procedure section 368.5 (which permitted the defendant, without notice, to continue defending this case under the name of the originally named predecessor) and his negligent failure to discover the identity of the defendant's ownership (for diversity purposes). Finding these errors to constitute garden variety professional negligence, it ruled that discretionary relief was not available. F. Plaintiff's Motion for Reconsideration re: Denial of Relief from Dismissal
Plaintiff then sought reconsideration. He argued that the court's ruling sustaining the demurrer in the related case constituted a "change in circumstances," such that he was now able and permitted to rely upon Becker's "mistake of law" in construing Addison to equitably toll the statute of limitations. He characterized the mistake as a reasonable one, entitling him to discretionary relief, and failing that, proffered Becker's alternative admission of fault, for purposes of mandatory relief.
The trial court denied the reconsideration motion on jurisdictional grounds alone, finding that the order dismissing the related state case did not constitute new or different facts or circumstances justifying reconsideration.
Plaintiff now appeals from the order denying his motion for relief from dismissal and from the order denying reconsideration. He also assigns error to the trial court's decision not to continue his motion for relief from dismissal.
A. The Court Properly Denied the Motion for Relief from Dismissal
"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 . . . . No affidavit or declaration of merits shall be required of the moving party. 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." (Code Civ. Proc., § 473, subd. (b).)
Code of Civil Procedure section 473, subdivision (b) consists of two distinct parts: "a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right." (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (Minick).) We address each in turn.
1. Plaintiff Establishes No Entitlement to Mandatory Relief
The latter portion of Code of Civil Procedure section 473, subdivision (b), which was added by amendment, requires the court to relieve a party from default when the attorney's sworn affidavit attests that his or her "mistake, inadvertence, surprise, or neglect" resulted in the entry of, inter alia, a dismissal against the attorney's client, unless the court finds that the claimed attorney error was not, in fact, the proximate cause of the default. (Code Civ. Proc., § 473, subd. (b).) A litigant need not show that his attorney's conduct was excusable, as the provision applies to even "inexcusable" mistakes. (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604.)
To the extent the availability of mandatory relief does not turn on disputed facts, it presents a pure question of law and is subject to de novo review. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Otherwise, we ask whether the trial court's decision is supported by "substantial evidence." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Mandatory relief was properly denied under either standard. Plaintiff did not ask for mandatory relief. More importantly, Becker did not provide an affidavit of fault. (Las Vegas Land & Development Company, LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1092.) In his declaration, Becker blamed defendant for concealing the fact of the change in corporate form and posited that, as a result of that deceit and the dearth of public information regarding defendant's ownership, Becker made a reasonable decision when he opted against going to trial without John York in favor of litigating in federal court. This is the opposite of an admission of fault. (State Farm Fire & Casualty Company v. Pietak (2001) 90 Cal.App.4th 600, 608-612 (State Farm) [counsel who insisted that his reading of the law was correct instead of making a "straightforward admission of fault" not entitled to relief].)
By failing to even mention mandatory relief in his original motion, plaintiff forfeited the issue. (Simplon Ballpark, LLC v. Scull (2015) 235 Cal.App.4th 660, 667-669 (Simplon).) Plaintiff also waived it on appeal by failing to include any relevant argument or authority in his briefing on appeal (except as relates to his requested continuance). (Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.) Nevertheless, in light of defendant's failure to object, we resolve this issue on the merits.
2. The Denial of Discretionary Relief Was Not an Abuse of Discretion
The party attacking a trial court's grant of relief bears the burden of demonstrating error. (State Farm, supra, 90 Cal.App.4th at p. 610.) However, in light of the policy of the law favoring a trial on the merits wherever possible, an order denying relief is scrutinized more carefully than one granting relief. (Brill v. Fox (1931) 211 Cal. 739, 743-744.) Further, the exercise of discretion "must rest on correct legal premises, of course, and in that respect our review is de novo." (Minick, supra, 3 Cal.App.5th at p. 25.) Otherwise, because the scope of the court's discretion under Code of Civil Procedure section 473 is broad and its factual findings are entitled to deference, "[a] ruling on a motion for discretionary relief under [Code of Civil Procedure] section 473 shall not be disturbed on appeal absent a clear showing of abuse." (State Farm, supra, 90 Cal.App.4th at p. 610.)
On appeal, plaintiff contends that the trial court applied the wrong legal standard to his request for discretionary relief. Although he provides little cogent explanation or supporting authority, he appears to claim that he sought relief for a "mistake of fact," which he characterizes as a distinct legal theory, with different criteria than a conventional motion for relief based upon "mistake, inadvertence, surprise, or excusable neglect." He further posits that the trial court erroneously disregarded evidence relevant to the "good faith mistake of fact standard" and that the trial court should not have considered whether the error was "excusable."
As the procedural history demonstrates, plaintiff almost certainly forfeited these contentions by failing to put the trial court or defendant on notice that he sought relief under the distinct legal theory to which he now refers as "mistake of fact." (Simplon, supra, 235 Cal.App.4th at p. 668.) We nonetheless address the merits.
First, plaintiff contends, incorrectly, that the trial court ignored the question of whether Becker's mistaken belief in federal subject matter jurisdiction was in "good faith." In fact, the trial court's order could not have been more clear on the issue. After observing that "Plaintiff has repeatedly delayed adjudication of the Plaintiff's claims against the Defendant," the court noted that the timing of the voluntary dismissal and the filing of the motion for relief similarly appeared calculated to delay the proceedings, particularly because the Becker's rationale for the dismissal and for the later motion (his belief in diversity jurisdiction) was "legally and factually unsupported." From these facts, the court concluded that plaintiff's decision to dismiss constituted a "strategic litigation decision" not, as he claims, a good faith mistake. We defer to the trial court's implicit determination of Becker's credibility on the issue. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 657 (Hodge).)
Plaintiff's contention that the trial court's criticism regarding the timing of the motion for relief constitutes reversible error lacks merit. As noted, the court cited timing as circumstantial evidence of plaintiff's intent to delay the proceedings. It did not, for example, deny the motion for relief as untimely.
Plaintiff next argues the trial court ignored relevant evidence, for example, by declining plaintiff's invitation to ask counsel for defendant whether counsel believed that diversity jurisdiction existed and refusing to consider certain post dismissal events corroborating Becker's belief. The trial court's silence on these issues does not establish that it refused to consider them, however. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown"].) Indeed, the court acknowledged some of these arguments at the hearing. It apparently concluded, as discussed above, that other facts, particularly those existing when the decision to dismiss was made, were strong indicators of bad faith.
Plaintiff also asserts that the trial court erred by considering whether Becker's mistake of fact was "excusable." No authority cited by plaintiff, however, precludes the court from considering whether an attorney's "mistake of fact" was excusable. (Hodge, supra, 189 Cal.App.2d 653.) To the contrary, all of the cases we have discovered involving mistakes of fact affirmed the trial court's consideration of not only whether the mistake was in "good faith," but also whether it was reasonable, justified, or otherwise excusable. (See, e.g., Rice v. Rice (1949) 93 Cal.App.2d 646, 651-652 [where party established that a mistake of material fact caused by fraud led to judgment, the court properly considered, inter alia, whether the mistaken belief was "justified"]; Barger v. Gabriel (1962) 200 Cal.App.2d 147, 149-150 (Barger) [statutory request for relief from judgment entered pursuant to settlement was properly denied where the circumstances showed that there was no excuse for failing to obtain the additional facts before electing to settle]; Lieberman v. Aetna Insurance Company (1967) 249 Cal.App.2d 515, 527-528 [in suit in equity to set aside judgment based upon mistake of fact, granting relief to insurance company which understandably failed to respond to complaint because it received, and relied upon, inaccurate information from an agent]; City of Fresno v. Superior Court (1980) 104 Cal.App.3d 25, 32-33 (City of Fresno) [motion for relief from failure to timely file claim due to a "mistake of fact" requires showing of reasonable diligence with respect to the mistaken fact and should be denied when the party's attorney, instead of undertaking a reasonable factual investigation, relied upon statements by his client's adversary].) We thus reject the assertion that a court must grant relief from an attorney's good faith "mistake of fact," when substantial evidence suggests that the mistake was not justified, reasonable, or excusable.
Moreover, under the circumstances, the trial court properly determined that Becker's mistaken belief in diversity jurisdiction was not reasonable, justifiable, or excusable. Relying on Becker's own description of efforts to discover the identity and citizenship of defendant's ownership before deciding to dismiss, his knowledge of (and research into) the legal requirements for diversity jurisdiction, and the reasons he says he believed that complete diversity existed and that dismissal was in his client's interests, the court concluded that Becker's mistake resulted from " 'professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.' " This conclusion is no abuse of discretion. In fact, Becker's own declaration reveals that he did little, if anything, to ascertain the legal standard for diversity jurisdiction. Had he performed basic research, he would have learned that the state of incorporation of the LLC, alone, was insufficient information to determine defendant's citizenship for diversity purposes. (Johnson v. Columbia Properties Anchorage, LP (9th Cir. 2006) 437 F.3d 894, 899 [the citizenship of an unincorporated association is determined by the residency of its members (and members' members, if applicable)].) Armed with this knowledge, he would (or should) have known that it was not safe to assume that diversity jurisdiction existed, based solely upon the state of incorporation of the LLC, and that it was therefore not safe to dismiss this case. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1412-1414 (Hopkins) [failure to grasp legal implications of the facts not a "mistake of fact" for which relief is available under Code of Civil Procedure section 473, subdivision (b)].)
Further, Becker admits his erroneous belief was the product of his reliance on the arguments and positions of defense counsel, rather than the fruits of his own inquiry, which he did not conduct. (See City of Fresno, supra, 104 Cal.App.3d at pp. 32-33 [relief not appropriate for attorney who, in lieu of investigating, relied upon adversary's representations]; Barger, supra, 200 Cal.App.2d at pp. 148-150 [statutory relief not appropriate for plaintiff who settled case before conducting full investigation into his own injuries].)
Nor was it an abuse of discretion to reject Becker's opinion that due diligence would not have uncovered the true facts. As the district court observed, defendant's own website disclosed the name of at least one "owner" who was later determined to be a resident of California. At a minimum, this publicly-available fact would have put a reasonably prudent attorney on notice that diversity jurisdiction may not exist.
The court's order was also correct because Becker failed to show that he erroneously believed some false fact. The movant must identify the "concrete actuating mistake" that led to the default and may not merely assert "a general state of misapprehension or ignorance" on some subject bearing on his litigation position. (Hopkins, supra, 200 Cal.App.4th at p. 1410.) Although Becker claims he was deceived by defense counsel, who failed to volunteer defendant's change in ownership structure and signed verifications which he interpreted to suggest that the original (California) entity still existed, defendant had no obligation to volunteer such information. (Code Civ. Proc., § 368.5; Davis v. Rudolph (1947) 80 Cal.App.2d 397, 401.) As the trial court observed and we stated earlier, the error leading to dismissal was not Becker's misapprehension of some fact, but his failure to appreciate that he needed more information before recommending dismissal to his client. The court properly rejected his attempt to recast his error in professional judgment as a "mistake of fact." (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 408-409.) Nor was he confronted with a complex or unsettled legal issue that might have rendered his error "excusable." (Fidelity Federal Savings & Loan Association v. Long (1959) 175 Cal.App.2d 149, 154; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)
For this reason, we deny plaintiff's request for judicial notice of defendant's answers to other complaints filed against it after the change in corporate form. Plaintiff contends these answers show defense counsel was aware of the change in form but failed to disclose it. If there was no obligation to disclose, however, and any judgment in this case would have been enforceable against defendant, these answers are irrelevant.
Finally, plaintiff contends that the trial court's denial of relief rests on two erroneous factual premises. First, he asserts that the trial court relied upon the fact that Becker believed that the existence of diversity "necessitated" a federal forum. The significance of this phrase is dubious and its meaning unclear. Most likely, this was an allusion to plaintiff's desire to sue John York, an out-of-state resident. (That is, once Becker believed there was diversity, it was "necessary" to file a complaint in federal court to reach York.) Even if, as plaintiff contends, the court misunderstood Becker's opinions regarding venue, plaintiff has not shown how the "necessity" of filing in federal court in any way influenced the court's assessment of the underlying question, which is whether Becker acted reasonably and diligently in investigating subject matter jurisdiction.
It seems unlikely the court concluded that Becker believed that the federal court had exclusive jurisdiction, since Becker had recently filed the second state court complaint, alleging the same claims as he had alleged in federal court.
Plaintiff also contends that the trial court incorrectly stated at one point that the federal action was filed after the voluntary dismissal. However, we do not see how the chronology of these two events bear on the central question here, which is the reasonableness of Becker's belief that diversity jurisdiction existed when he decided to dismiss the state court complaint. Becker believed there was diversity jurisdiction before he dismissed this case. As a matter of law, he was also required to believe this before filing the federal complaint. (Kanter v. Warner-Lambert Co. (9th Cir. 2001) 265 F.3d 853, 857 [in federal court, a party asserting diversity jurisdiction has a duty to plead facts in support of the assertion, including the citizenship of each party]; Nguyen v. BrooksAmerica (C.D. Cal. Sept. 29, 2009, No. CV 09-7054-JFW (VBKx)) 2009 WL 3162435, at p. *1 [applying this standard to plaintiffs].) And while the order of these events might potentially have some relevance to Becker's equitable tolling argument, plaintiff declined to put equitable tolling at issue in his motion for relief. Thus, it is not properly before us on appeal. B. The Refusal to Continue the Motion was Well within the Court's Discretion
Plaintiff concedes that we review the trial court's denial of his request for continuance under the "abuse of discretion" standard. (See, e.g., Muller v. Tanner (1969) 2 Cal.App.3d 445, 457.) In considering whether to grant a continuance, a court must consider all of the relevant facts and circumstances, including possible prejudice to the parties, and give due regard to all interests involved. (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 493-494.) Only a decision that "exceeds the bounds of reason" constitutes an abuse of discretion. (Muller v. Tanner, at p. 457.)
We note the absence of a proper written application for a continuance, supported by an affidavit showing good cause, with adequate notice to defendant. Even putting aside this procedural lapse, however, plaintiff has not shown that anything precluded him from presenting all of the pertinent facts and arguments with his original motion. The trial court's eventual ruling on the demurrer was not determinative, as it could not change the facts as they existed many months before, when plaintiff dismissed this case.
Plaintiff argues a continuance would have allowed him to submit an augmented declaration satisfying both the "discretionary" and "mandatory" grounds for relief under Code of Civil Procedure section 473, subdivision (b), resulting in a grant of relief. However, nothing prevented plaintiff from arguing these legal theories conditionally in his original motion in the event the trial court disagreed with his tolling argument on the merits. For these reasons, denial of plaintiff's request for a continuance was well within the trial court's discretion. C. The Court Properly Denied Plaintiff's Motion for Reconsideration
The trial court denied plaintiff's motion for reconsideration on the sole grounds that plaintiff failed to satisfy Code of Civil Procedure section 1008's jurisdictional, threshold requirement to show a change in facts, circumstances, or law.
This ruling was correct. The reconsideration motion was based upon facts and circumstances known to Becker at the time of the original motion. Becker did not identify any circumstances that legitimately prevented him from presenting the "new" (reliance upon equitable tolling) argument as part of the original motion for relief. Thus, the trial court lacked jurisdiction to reconsider the matter. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 [applicant must present new facts, circumstances, or law justifying his renewed application for relief and a satisfactory reason for not presenting evidence earlier].)
The trial court's orders denying plaintiff's motion for relief from dismissal and motion for reconsideration, and its decision not to grant his request for continuance, are affirmed. Defendant shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------