Hamada v. Valgardson CA2/7 ( 2015 )

Filed 2/17/15 Hamada v. Valgardson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
LEIKO HAMADA et al., B252714
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. SC120488)
v.
RICHARD VALGARDSON,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Allan J.
Goodman, Judge. Affirmed.
Koletsky, Mancini, Feldman & Morrow, and Susan L. Caldwell for Plaintiffs and
Appellants Leiko Hamada and Julian Mehra.
No appearance by Respondent.
____________________
Leiko Hamada and her adult son, Julian Mehra (collectively the Hamada parties),
appeal from the order entered after the trial court granted Richard Valgardson’s motion to
quash the summons and complaint served on him at his residence in Utah. The trial court
found the Hamada parties had failed to meet their burden to establish Valgardson had
sufficient minimum contacts with California to permit personal jurisdiction over him.
The Hamada parties also challenge the trial court’s denial of their motion “to vacate
1
and/or for reconsideration of” the order quashing service on Valgardson. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties and the Modular Home Contract
Valgardson is the sole owner, president and chief executive officer of Irontown
Housing Company, Inc. (IHC), a Utah corporation in the business of manufacturing
modular, factory-built housing. In 2011 Hamada entered into a contract with IHC to
build a modular home and to perform various services associated with affixing the home
to real property Hamada owned in Santa Monica. The modular home was to be used by
Mehra as his personal residence. The contract was signed by Hamada, on her own
behalf, and by Valgardson’s son, Kam Valgardson, IHC’s vice president of operations, on
behalf of IHC.
2. This Lawsuit
On April 3, 2013 the Hamada parties sued, among others, IHC, Valgardson and
Kam Valgardson—the Valgardsons were sued both individually and as alter egos of
IHC—alleging causes of action against each of them for breach of contract, fraud and
related statutory claims. The Hamada parties alleged IHC performed substandard work
resulting in an unfinished and uninhabitable home. They also alleged IHC and the
Valgardsons had committed fraud by, among other things, representing that IHC was
1 The Hamada parties also appealed from the trial court’s order granting Kam
Valgardson’s separate motion to quash the summons and complaint directed to him in his
personal capacity. After receiving notice of Kam Valgardson’s discharge from
bankruptcy in the federal district court, we invited the Hamada parties to show cause why
the appeal as to Kam Valgardson should not be dismissed. We received no response and
on December 30, 2014 dismissed the Hamada parties’ appeal as to Kam Valgardson.
2
licensed as a general contractor in California and using a false California contractor’s
license number on the contract. In fact, they alleged, IHC was not licensed in California:
Richard Valgardson was a licensed general contractor in California solely in his
individual capacity and unlawfully used his license while the contract was being
performed to further, or at the very least prevent the Hamada parties from discovering,
the fraud.
3. Valgardson’s Motion To Quash Service of the Summons and Complaint
Valgardson specially appeared in the action and moved to quash service of the
summons and complaint, arguing the court lacked personal jurisdiction over him in his
2
individual capacity. In a signed declaration submitted with his motion, Valgardson
stated he had been a resident of Utah for 66 years; had never lived in California or
maintained an office in California; and had never advertised in his personal capacity in
California, owned real property in California or paid personal income taxes in California.
Valgardson did not mention whether he was a California licensed general contractor.
The Hamada parties opposed Valgardson’s motion, arguing Valgardson’s work on
their contract on behalf of IHC and his actions relating to it constituted sufficient contact
to permit the court to assert specific personal jurisdiction over him, particularly with
respect to their claims arising from the use of his individual contractor’s license to further
a fraud against them. As evidence to support their position, the Hamada parties
submitted the declaration of their counsel, Susan Caldwell, who attested to the following:
IHC routinely directed its advertising to California residents as reflected on its website;
Valgardson filed an affidavit in May 2013 with a Utah court in connection with a related
lawsuit he had initiated there against Hamada, stating under penalty of perjury, “I was at
all times, prior to, during contract development, planning fabrication and installation of
the Leiko Hamada factory-built house, personally a Utah General Contractor and a
California-licensed General Contractor. . . . [¶] . . . I personally supervised, both at our
2 IHC has not disputed jurisdiction. It appeared in the action and filed a petition to
compel arbitration pursuant to an arbitration provision in the contract. That petition was
granted by the trial court and is not before us.
3
factory in Spanish Fork, Utah, and in the follow-on transportation, set and stitch phases,
all elements of the Hamada job.” Caldwell also included with her declaration “true and
correct” print-outs from the website of the Contractors State Licensing Board (CLSB)
confirming (i) IHC was not a licensed general contractor in California at the time of the
contract; (ii) the California license number on the contract purporting to be IHC’s did not
exist; and (iii) Valgardson was licensed in his personal capacity with the CLSB under a
different license number. Caldwell also included a letter to her from CLSB’s custodian
of records attesting under penalty of perjury that Valgardson was licensed as a general
contractor in California during the relevant time period; IHC was not licensed; and the
CLSB had no record of any individual or entity with the purported California license
number listed in the contract. Finally, Caldwell included what she attested to be “true
and correct copies” of emails from Kam Valgardson to Hamada’s architect responding to
the architect’s request for IHC’s general contractor’s license number. Kam Valgardson
provided the architect with Valgardson’s personal California general contractor’s license
number in an email the architect then forwarded to Hamada with instructions to use the
number to complete assessor forms required for new construction in California.
In his reply papers Valgardson argued the evidence the Hamada parties had
supplied related solely to IHC’s contacts with California, not Valgardson’s personally.
He also objected to all evidence Caldwell had cited in her declaration, arguing Caldwell
lacked any personal knowledge of the contract, the contract negotiations and
Valgardson’s actions as to which she purported to testify. Valgardson also objected on
the ground the documents she provided constituted inadmissible hearsay.
In a written tentative opinion filed prior to the hearing, the court indicated it
intended to sustain each of Valgardson’s objections to Caldwell’s declaration, observing
Caldwell was “manifestly not a person who ha[d] first-hand knowledge of the facts set
out” in her declaration. On September 23, 2013, the morning of the hearing on the
motion to quash, Hamada filed her own declaration purporting to cure the evidentiary
deficiencies identified in Valgardson’s objections and in the court’s tentative ruling. In
particular, Hamada testified she had personal knowledge of the contract and the emails as
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to which Caldwell had purported to testify. She explained Kam Valgardson had supplied
Valgardson’s California general contractor’s license number to Hamada’s architect in an
email exchange the architect then forwarded to Hamada. Hamada attached the emails to
her declaration.
At the September 23, 2013 hearing the trial court refused to consider Hamada’s
declaration, concluding it was substantially and inexcusably untimely having been filed
the morning of the hearing and only in response to the court’s tentative ruling. The court
then sustained each of Valgardson’s objections to Caldwell’s declaration and, without
evidence of Valgardson’s use of his individual general contractor’s license to perpetrate a
fraud or any other evidence of contact with California in his personal capacity, ruled the
evidence pointed solely to IHC’s contacts with California, not Valgardson’s individually;
and the Hamada parties had failed to meet their burden. On October 1, 2013 the court
entered an order granting Valgardson’s motion to quash service of the summons and
complaint served on him in his individual capacity.
4. The Hamada Parties’ Motion To Vacate and Motion for Reconsideration
On October 3, 2013 the Hamada parties moved to vacate the order granting the
3
motion to quash pursuant to Code of Civil Procedure section 473, subdivision (b), and
for reconsideration pursuant to section 1008. The Hamada parties supplied an affidavit
from Caldwell taking full responsibility for the objectionable declaration she had filed in
opposition to the motion to quash and for the failure to file Hamada’s declaration in a
timely manner and argued the affidavit satisfied the requirements for mandatory relief
under section 473, subdivision (b). She also argued Hamada’s declaration was a “new
circumstance” warranting reconsideration. On October 25, 2013 the court denied the
motion.
3 Statutory references are to the Code of Civil Procedure unless otherwise indicated.
5
On November 13, 2013 the Hamada parties filed a notice of appeal from the
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October 1, 2013 order granting the motion to quash.
DISCUSSION
1. Governing Law on Motion to Quash and Standard of Review
When a specially-appearing nonresident defendant challenges personal jurisdiction
by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the
evidence, the factual bases justifying the court’s exercise of jurisdiction. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons); accord,
Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 273 (Pavlovich). The plaintiff must
provide affidavits and other competent evidence of jurisdictional facts and cannot simply
rely on allegations in an unverified complaint. (In re Automobile Antitrust Cases I & II
(2005) 135 Cal.App.4th 100, 110.) If the plaintiff meets this burden, “it becomes the
defendant’s burden to demonstrate that the exercise of jurisdiction would be
unreasonable. [Citation.] When there is conflicting evidence, the trial court’s factual
determinations are not disturbed on appeal if supported by substantial evidence.
[Citation.] When no conflict in the evidence exists, however, the question of jurisdiction
is purely one of law and the reviewing court engages in an independent review of the
record.” (Vons, at p. 449, accord, Burdick v. Superior Court (2015) 233 Cal.App.4th 8,
17 (Burdick).)
4 An order granting a motion to quash is an appealable order (§ 904.1, subd. (a)(3));
and the order denying the motion for reconsideration, although not identified in the notice
of appeal, is nonetheless encompassed by that notice. (See § 1008, subd. (g) [“if the
order that was the subject of a motion for reconsideration is appealable, the denial of the
motion for reconsideration is reviewable as part of the appeal from that order”].) We
have some question whether the order denying the section 473 motion to vacate the order
to quash is separately appealable, however, since it is neither an order specifically
identified in section 904.1, subdivision (a), as appealable nor, unlike orders denying
section 473 motions in many other contexts, “an order made after judgment made
appealable by paragraph (1)” of section 904.1, subdivision (a). Nonetheless, we need not
parse this issue too finely. Even assuming the order denying the motion to vacate is
appealable and properly considered on its merits, for the reasons we explain, it was
properly denied.
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2. Governing Law on Personal Jurisdiction
“‘California courts may exercise personal jurisdiction on any basis consistent with
the Constitution[s] of California and the United States. (Code Civ. Proc., § 410.10.) The
exercise of jurisdiction over a nonresident defendant comports with these Constitutions
“if the defendant has such minimum contacts with the state that the assertion of
jurisdiction does not violate ‘“traditional notions of fair play and substantial justice.”’”’”
(Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1061 (Snowney);
accord, Pavlovich, supra, 29 Cal.4th at p. 268; Vons, supra, 14 Cal.4th at p. 446.)
Under the minimum contacts test personal jurisdiction may be either general or
specific. (Snowney, supra, 35 Cal.4th at p. 1062; Vons, supra, 14 Cal.4th at p. 445.)
General jurisdiction exists when the defendant’s contacts with the forum state are so
“substantial” or “continuous and systematic” as to make it consistent with traditional
notions of fair play and substantial justice to subject the defendant to the jurisdiction of
the forum even when the cause of action is unrelated to the defendant’s contacts with the
forum. (Vons, at p. 446; Daimler AG v. Bauman (2014) __ U.S. __, __ [134 S.Ct. 746,
754, 187 L.Ed.2d 624].)
Specific jurisdiction, on the other hand, requires some nexus between the cause of
action and the defendant’s activities in the forum state. Under well-established case law
specific jurisdiction exists when (1) the defendant has “purposefully availed” himself or
herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s
contacts with the forum; and (3) the assertion of personal jurisdiction would comport
with “‘fair play and substantial justice.’” (Pavlovich. supra, 29 Cal.4th at p. 268; accord,
Vons, supra, 14 Cal.4th at p. 446; Daimler AG v. Bauman, supra, 134 S.Ct. at p. ___;
Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473 [105 S.Ct. 2174,
85 L.Ed.2d 528].) There are no bright line rules for determining jurisdiction. “‘[R]ather,
the facts of each case must be weighed to determine whether the requisite “affiliating
circumstances” are present.’” (Pavlovich, at p. 268; accord, Burdick, supra, 233
Cal.App.4th at p. 18.)
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3. The Trial Court Did Not Err in Granting Valgardson’s Motion To Quash
a. Caldwell’s declaration
The Hamada parties contend the court erred in granting the motion to quash.
Although there was no evidence of Valgardson’s individual “continuous and systematic”
5
contacts with California, the Hamada parties highlight the fact he individually held a
general contracting license in California and had purposefully used that license to assist
IHC in perpetrating a fraud. Had there been competent and timely evidence presented to
that effect, we might agree the Hamada parties met their burden to establish Valgardson
had sufficient minimum contacts with California to permit personal jurisdiction over him
in this action specifically relating to the use of that license to commit a tort against a
California resident. (See Seagate Technology v. A.J. Kogyo Co. (1990) 219 Cal.App.3d
696, 702 [personal jurisdiction over a corporate officer does not automatically follow
from jurisdiction over the corporation; nonetheless, personal jurisdiction may be asserted
over nonresident corporate officer who was primary participant in corporation’s alleged
tortious activity purposefully directed at the plaintiff in California]; Taylor-Rush v.
Multitech Corp. (1990) 217 Cal.App.3d 103, 114-118 [same]; Serafini v. Superior Court
(1998) 68 Cal.App.4th 70, 79-80 [same].)
However, the Hamada parties’ argument depends entirely on the admissibility of
evidence of Valgardson’s use of his California license to perpetrate a fraud; and the trial
court ruled the evidence was inadmissible largely due to Caldwell’s failure to provide a
proper foundation for, or otherwise authenticate, the evidence she presented.
Significantly, apart from the single exception we discuss below, the Hamada parties do
not challenge those evidentiary rulings on appeal. Thus, any claim of error in that regard
has been forfeited. (Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1074 [appellant’s failure to properly challenge the trial court’s many evidentiary
5 All the evidence the Hamada parties identified as to continuous and systematic
contact pertained to IHC and Kam Valgardson, not Valgardson individually.
8
rulings forfeits the issue on appeal]; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th
1480, 1492, fn. 14 [same].)
Effectively conceding the evidentiary deficiencies in much of Caldwell’s
declaration, the Hamada parties argue that proper foundation and authentication of the
materials attached to the declaration were not required. To the extent they suggest the
threshold question of admissibility of evidence is lower in connection with a motion to
quash than in other motions in light of the dispositive jurisdictional issue at stake, they
misapprehend their burden. (See generally In re Automobile Antitrust Cases I & II,
supra, 135 Cal.App.4th at p. 113 [“[R]equiring the trial court to draw an inference in
favor of jurisdiction in the circumstances before us would lighten plaintiffs’ burden of
proof of jurisdictional facts. [Citations.] That burden of proof is grounded in
constitutional guarantees of due process. We cannot set aside principles of fairness and
reasonableness, but must show proper regard for them.”].) The Hamada parties argue,
“Unlike an evaluation of evidence for admissibility at trial or summary judgment—
whereby the evidence must be held to a higher standard of proof based upon its
credibility and likelihood of being true—evidence considered at the pleading stage,
including upon a motion to quash, need only be such to reflect that ‘constitutionally
cognizable minimum contacts’ appear to justify the imposition of jurisdiction.” While
the legal standard they describe for evaluating minimum contacts may be broadly
accurate, there is no authority for the assertion that inadmissible evidence may be
considered notwithstanding a proper objection or that the evidentiary standard on a
motion to quash is different from, or less than, other pretrial motions.
The Hamada parties do contend Valgardson’s declaration in the Utah action was
properly authenticated by Caldwell and sufficient by itself to establish sufficient
minimum contacts for specific personal jurisdiction relating to the contract at issue here.
In that affidavit Valgardson stated he held licenses as a general contractor in California
and in Utah and directly supervised “every aspect” of the Hamada job. Even assuming
9
6
this one item of evidence was admissible, it fell far short of satisfying the Hamada
parties’ burden of proof. Valgardson’s Utah affidavit stated only that he had supervised a
job that was performed largely, if not exclusively, in Utah, under the terms of Hamada’s
contract with the corporate entity. There is no question IHC was obligated to perform
under the contract; and IHC can only act through its agents and employees. Valgardson’s
activities as a corporate officer were essentially irrelevant. What was at issue in the
motion to quash was whether he had individually engaged in purposeful tortious conduct
directed to California, conduct that would be sufficient to support personal jurisdiction
over him.
In an attempt to make the requisite showing, the Hamada parties highlight the
purported use of Valgardson’s individual California general contractor’s license to
prevent them from promptly discovering IHC’s fraud. Merely holding a license in
California is generally not sufficient, standing alone, to support personal jurisdiction over
the license holder. (See Crea v. Busby (1996) 48 Cal.App.4th 509, 514-516 [no personal
jurisdiction over Oregon resident although he was licensed to practice law in California
when he had not practiced law in California in 14 years, did not maintain an office, solicit
clients, advertise or own property or have obligations in California]; Edmunds v. Superior
Court (1994) 24 Cal.App.4th 221, 234.) Nonetheless, it is a factor for the court to
consider (Crea, at p. 516); and the use of that license as part of a scheme to commit a
tortious action in California might very well be sufficient “purposeful availment”
supporting specific jurisdiction for claims related to the use of that license. (See
generally Calder v. Jones (1984) 465 U.S. 783, 789 [104 S.Ct. 1482, 79 L.Ed.2d 804];
Taylor-Rush v. Multitech Corp., supra, 217 Cal.App.3d at p. 118 [“[w]e are in agreement
with those courts that have concluded that an unreasonable and anomalous result would
occur if a nonresident individual, acting in his capacity as a corporate officer or director,
committed a tort for which he may be personally liable and could shield himself from
6 The Hamada parties did not request judicial notice of the Utah affidavit, and the
foundation proffered by Caldwell as to its admissibility was negligible.
10
jurisdiction when he could not interpose the same shield as a defense to substantive
liability”].) The only evidence Caldwell cited that Valgardson’s license was used to this
effect, however, was contained in emails between Kam Valgardson and Hamada’s
architect, which were forwarded from the architect to Hamada. The court excluded those
email exchanges because Caldwell had not properly authenticated them and, as discussed,
that ruling has not been challenged on appeal. As a result, the necessary link between
Valgardson’s contractor’s license and his individual actions directed to California is
absent. (See Burdick, supra, 233 Cal.App.4th at p. 24 [“‘exercise of jurisdiction must be
based on forum-related acts that were personally committed by each nonresident
defendant’”]; CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101,
1118.)
b. Hamada’s declaration
Hamada’s declaration, filed the day of the hearing on the motion to quash,
attempted to cure the primary defect in Caldwell’s declaration by demonstrating that
Hamada had personal knowledge of the email exchanges in which she was told to use
what turned out to be Valgardson’s California general contractor’s license to obtain
regulatory approvals in California for her home. The court refused to consider the
Hamada declaration because it was untimely and there was no meaningful explanation for
the delay.
The Hamada parties contend the court erred in refusing to consider the late
declaration but, apart from highlighting the detrimental effect of that exclusion, they do
not address how that ruling, well within the court’s discretion, was improper. (See
§ 1005, subd. (b) [“[a]ll papers opposing a motion . . . shall be filed with the court and a
copy served on each party at least nine court days . . . before the hearing”]; see also Cal.
Rules of Court, rule 3.1300(d) [recognizing court’s discretion to refuse to consider late-
filed papers].)
The Hamada parties alternatively argue the court should have, at the very least,
granted a continuance to permit them to conduct discovery to acquire the jurisdictional
facts necessary to oppose the motion to quash. To be sure, a plaintiff seeking to assert
11
jurisdiction over a nonresident defendant is entitled to conduct discovery regarding the
jurisdictional facts necessary to sustain its burden of proof. (In re Automobile Antitrust
Cases I & II, supra, 135 Cal.App.4th at p. 127; Beckman v. Thompson (1992)
4 Cal.App.4th 481, 487.) To prevail on a motion for a continuance for jurisdictional
discovery, however, the plaintiff must demonstrate the requested discovery is likely to
develop facts establishing jurisdiction. (In re Automobile Antitrust Cases, at p. 127.)
The trial court’s determination whether that threshold burden has been satisfied is then
reviewed for abuse of discretion. (Ibid.) Here, the Hamada parties did not ask the trial
court to continue the hearing for this, or any other, purpose, much less identify any
jurisdictional facts they needed to obtain in discovery to defeat the motion. The court had
no obligation, on its own or in response to anything counsel for the Hamada parties said
at the hearing,7 to continue the hearing under the circumstances presented.
4. The Motions To Vacate and for Reconsideration
a. Motion To Vacate
The Hamada parties’ appeal is directed primarily to the court’s denial of their
motion to vacate and/or for reconsideration. As to the motion to vacate, they argue
Caldwell’s attorney affidavit taking full responsibility for her own defective declaration
and her failure to file Hamada’s declaration in a timely manner satisfied the requirements
for mandatory relief under section 473, subdivision (b), vacating the court’s ruling on the
motion to quash.
Section 473, subdivision (b), provides for both discretionary and mandatory
8
relief. Under the discretionary relief provision, on a showing of “mistake, inadvertence,
7 At the hearing on the motion to quash the court asked counsel to justify the late
submission of the Hamada declaration. Caldwell responded, “[T]he court has the ability
to make a ruling that either permits either jurisdictional discovery or to make a finding
that is to the substance of the motion over the form.” That statement, offered to justify
the late submission of Hamada’s declaration, cannot reasonably be construed as a request
for a continuance to permit necessary discovery.
8 Section 473, subdivision (b), states, “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
12
surprise, or excusable neglect,” the trial court may allow relief from a “judgment,
dismissal, order, or other proceeding taken against” a party based on its evaluation of the
nature of the mistake or error alleged and the justification proffered for the conduct that
occurred. Under the mandatory relief provision, on the other hand, upon a showing by
attorney declaration of “mistake, inadvertence, surprise, or neglect,” the trial court must
vacate any “resulting default judgment or dismissal entered . . . .” (§ 473, subd. (b).)
“The range of attorney conduct for which relief can be granted in the mandatory
provision is broader than that in the discretionary provision, and includes ‘inexcusable’
neglect. But the range of adverse litigation results from which relief can be granted is
narrower. Mandatory relief only extends to vacating a default which will result in the
entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v.
Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616, italics in original
(Leader).)
Although the statute refers generally to “dismissals,” most appellate courts,
examining the language and history of the statute, have concluded the Legislature
intended the word “dismissal” to have a limited meaning in the context of the mandatory
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 . . . . 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. The court shall, whenever relief is granted based on an attorney’s affidavit of
fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing
counsel or parties. However, this section shall not lengthen the time within which an
action shall be brought to trial pursuant to Section 583.310.”
13
relief portion of section 473, subdivision (b). (See, e.g., English v. IKON Business
Solutions, Inc. (2001) 94 Cal.App.4th 130, 148 (English); Leader, supra, 89 Cal.App.4th
at p. 618.) Accordingly, mandatory relief has been restricted to those dismissals that are
“procedurally equivalent to a default” and, in particular, when the plaintiff’s counsel
failed to oppose the motion to dismiss. (Peltier v. McCloud River R.R. Co. (1995)
34 Cal.App.4th 1809, 1817 [“when the Legislature incorporated dismissals into
section 473 it intended to reach only those dismissals which occur through failure to
oppose a dismissal motion—the only dismissals which are procedurally equivalent to a
default”]; Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1070
[“‘[A] default judgment is entered when a defendant fails to appear, and, under
section 473, relief is afforded where the failure to appear is the fault of counsel.
Similarly, under our view of the statute, a dismissal may be entered where a plaintiff fails
to appear in opposition to a dismissal motion, and relief is afforded where the failure to
appear is the fault of counsel.’”]; see also Noceti v. Whorton (2014) 224 Cal.App.4th
1062, 1067-1068 [applying limited meaning of “dismissal” as articulated in English];
Hossain v. Hossain (2007) 157 Cal.App.4th 454, 458 [same].)
Here, Caldwell submitted an opposition on behalf of her clients, appeared at the
hearing and argued in opposition to the motion. The order quashing the service of the
summons and complaint is simply not the procedural equivalent of a default. (See
Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45-46
[counsel’s intentional conduct in failing to file timely complaint not subject to mandatory
relief provisions; intentional conduct that “leads to a dismissal is not akin to a default”];
Brown v. Williams (2000) 78 Cal.App.4th 182, 189 [when plaintiff appeared and
participated in hearing, plaintiff’s counsel’s failure to request trial de novo is not grounds
for invoking mandatory relief provision; judgment entered against plaintiff was not the
procedural equivalent of a default]; Ayala v. Southwest Leasing & Rental, Inc. (1992)
7 Cal.App.4th 40, 44 [“This case does not involve a default judgment. Respondents not
only answered the complaint, they also participated in discovery and in an arbitration
hearing. . . . [Citations.] Therefore respondents’ motion to vacate the judgment fell
14
within the discretionary, rather, than the mandatory, provisions of Code of Civil
Procedure section 473”].) The court did not err in concluding mandatory relief for
9
attorney fault under section 473, subdivision (b), was unavailable in this case.
b. Motion for reconsideration
A motion for reconsideration under section 1008 must be “based on new or
different facts, circumstances, or law [citation], and facts of which the party seeking
reconsideration was aware at the time of the original ruling are not ‘new or different.’”
(In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468; see § 1008, subd. (a).) In
addition to demonstrating there are new or different facts, circumstances or law, the party
seeking reconsideration must provide a satisfactory explanation for the failure to offer the
new evidence earlier. (In re Marriage of Herr, at p. 1468.) We review an order denying
a motion for reconsideration for abuse of discretion. (Reynolds v. City of Calistoga
(2014) 223 Cal.App.4th 865, 871.)
The Hamada parties contend the court erred in denying their motion for
reconsideration based on the “new evidence” or the “new circumstance” of Hamada’s
declaration. However, Hamada’s declaration, based on facts the Hamada parties knew at
the time of the original ruling, did not provide “new or different” evidence, nor was any
explanation advanced for the failure to offer the Hamada declaration in the first instance
other than Caldwell’s assertion that she had believed her own declaration would be
sufficient to satisfy any evidentiary burden. The court did not abuse its discretion in
denying the reconsideration motion. (See New York Times v. Superior Court (2005) 135
Cal.App.4th 206, 213 [“Although the evidence was new to the trial court, it was available
to WSN throughout the discovery process and was easily obtainable, as demonstrated by
the April 1 depositions. . . . WSN failed to include any of this information in its
9 The Hamada parties do not contend the court abused its discretion under the
discretionary provisions of section 473; accordingly, we do not consider that question.
(See Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1519 [appellate “‘review is
limited to issues which have been adequately raised and briefed’”]; Claudio v. Regents of
University of California (2005) 134 Cal.App.4th 224, 230 [same].)
15
opposition to the summary judgment motion, or even mention it to the court until the end
of the hearing, when it appeared that the court would rule against it. This evidence was
not the type of ‘new or different facts, circumstances, or law’ that would justify
reconsideration.”]; Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688,
692 [plaintiff’s erroneous belief that certain evidence was not necessary at hearing on
summary motion insufficient to justify reconsideration], disapproved on another ground
10
in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
DISPOSITION
The order granting Valgardson’s motion to quash is affirmed. Because
Valgardson filed no respondent’s brief, each party is to bear his and her own costs on
appeal.
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
10 Contrary to the Hamada parties’ assertion, our decision upholding the trial court’s
denial of Valgardson’s motion to quash does not necessarily mean Valgardson is immune
from any personal liability in this California action. If the Hamada parties prevail on
their claims against IHC and succeed in establishing Valgardson’s status as an alter ego
of IHC, as they insist he is, they may pierce the corporate veil and execute any judgment
against IHC against Valgardson personally. (See Misik v. D’Arco (2011)
197 Cal.App.4th 1065, 1072-1073 [trial court has authority under § 187 to amend
judgment to add a judgment debtor under the alter ego doctrine].)
16