Sanford v. McMurray CA2/2 ( 2021 )

Filed 9/22/21 Sanford v. McMurray CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MELISSA SANFORD et al., B307435
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC628284)
v.
KENDEL HERM MCMURRAY
et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
DorenfeldLaw, David Dorenfeld and Mazyar H. Mazarei for
Plaintiffs and Appellants.
DKM Law Group, Robert S. McLay, Joshua N. Kastan and
Jessica J. Ross for Defendant and Respondent USAA Casualty
Insurance Company.
Mokri Vanis & Jones, Todd A. Jones and Marcia E. Cook
for Defendant and Respondent Kendel Herm McMurray.
Melissa Sanford and Jason Burks (appellants) appeal from
the trial court’s order denying their motions to set aside the
dismissal of this lawsuit, which appellants filed in 2016 against
USAA Casualty Insurance Company (USAA) and Kendel Herm
McMurray doing business as K-Mac Construction (K-Mac)
(collectively respondents). The trial court denied appellants’
motions on the ground that the case had been dismissed three
years earlier and the equities weighed in favor of the respondents
due to the passage of time. We find no abuse of discretion by the
trial court and affirm the court’s order.
BACKGROUND
The fire and initial insurance payments
This case stems from a residential fire that occurred
November 3, 2014, and destroyed appellants’ home. Appellants
had hired K-Mac to re-roof the property on September 20, 2014,
and they believed that K-Mac’s workers caused the fire.1 At the
1 Appellants’ opening brief violates California Rules of Court,
rule 8.204(a)(1)(C), which requires a party to “[s]upport any
reference to a matter in the record by a citation to the volume
and page number of the record where the matter appears.”
Instead of citing a precise page number for each fact stated in
their opening brief appellants have cited their entire declarations
to support each separate point—for a total of nearly 370 pages
cited for each fact stated. This court is not required to parse
through “block page reference[s]” such as those offered by
appellants in order to find the relevant supporting factual
information. (Bernard v. Hartford Fire Ins. Co. (1991) 226
Cal.App.3d 1203, 1205.) Appropriate reference to the record
includes “providing exact page citations.” (Ibid.) We therefore
rely mainly on the factual summaries provided by respondents.
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time of the loss appellants’ property was insured under a
homeowner’s insurance policy issued by USAA.
USAA investigated the claim. After making several
upward adjustments in its estimation of the fire damages at the
property, USAA paid appellants more than $870,000 in various
types of benefits under the policy.
Appellants’ complaint
On or about April 14, 2016, appellants retained the services
of Glenn T. Rosen (Rosen) of the Rosen Law Firm, A Professional
Corporation, to represent them against respondents.
On July 25, 2016, Rosen filed a complaint on appellants’
behalf against respondents stating claims for (1) breach of
construction contract, (2) negligence, (3) breach of insurance
contract, and (4) breach of the implied covenant of good faith and
fair dealing (the USAA lawsuit).
USAA discovery and terminating sanctions
On September 19, 2016, USAA served initial written
discovery requests on appellants. On September 28, 2016,
appellants received copies of these discovery requests from
Rosen’s assistant. Appellants informed Rosen that they could not
respond within 30 days. Rosen responded that he could get an
extension of time. USAA granted four separate extensions of
time through December 27, 2016.
On January 12, 2017, USAA filed a motion to compel
discovery against appellants. On March 15, 2017, the trial court
granted the motion and ordered appellants to respond to the
discovery requests within 20 days.
Appellants failed comply with the court’s order. On
April 21, 2017, USAA filed a motion for terminating sanctions
seeking dismissal of the matter due to appellants’ failure to
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participate in the discovery process. On July 11, 2017, the trial
court granted the motion and dismissed the case without
prejudice.
K-Mac discovery and terminating sanctions
On October 3, 2016, K-Mac served initial written discovery
on appellants. The responses were due on November 7, 2016. K-
Mac met and conferred with appellants’ counsel and after a series
of requests for extensions, granted appellants additional time to
complete the responses through December 27, 2016. Appellants
never returned the discovery.
K-Mac filed motions to compel discovery on January 24,
2017, and on April 13, 2017. These motions were granted on
March 15, 2017, and May 15, 2017, respectively. Appellants were
ordered to provide code compliant responses within 10 days and
pay monetary sanctions. Appellants nevertheless failed to
provide discovery responses.
On June 5, 2017, K-Mac filed a motion for terminating
sanctions. On July 3, 2017, K-Mac’s motion was granted, and the
case was dismissed as to K-Mac.
Appellants’ motions to set aside and/or vacate dismissal
On March 9, 2020, nearly three years after their complaint
was dismissed against both respondents, appellants filed motions
to vacate and/or set aside the dismissal against each respondent.
According to appellants’ declarations filed in the trial court,
appellants were in communication with their counsel
intermittently throughout early 2017. On July 10, 2017,
appellants’ counsel sent them an e-mail stating that he had never
received their signed verifications for the USAA discovery.
Appellants forwarded their attorney the signed verifications
within an hour. This was the last communication they had with
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their attorney regarding discovery. They next communicated
with him nearly seven months later, on January 23, 2018, when
Burks asked counsel what dates they would have to take off of
work for the trial. Their counsel responded that the trial date
was “delayed.”
Appellants next sought information regarding the status of
the case 16 months later, on May 16, 2019. Their counsel
responded, “It’s coming along slowly. They’re considering
depositions over the summer. Do you have travel plans?”
On December 19, 2019, Burks attested that he asked a
colleague to search for his name in the court records. It was then
he first discovered that a judgment had been entered against
appellants in a separate case in which they were represented by
the same counsel (Eden Development & Consulting Inc. v.
Sanford (Super. Ct. L.A. County, No. BC707260) (Eden case).
Appellants hired a new attorney to advise them in the Eden case
and to determine what had occurred in this case.
Ten days later, on December 28, 2019, appellants first
learned through their newly retained counsel that this matter
had been dismissed for failure to respond to discovery. The two
motions to vacate and/or set aside the dismissal in this matter
were filed more than 10 weeks later.2
The trial court’s ruling
The matter was heard via telephonic proceedings on July 6,
2020. Following lengthy proceedings the court noted that it was
a “close call,” but the court was “convinced” that appellants’
2 Respondents point out that appellants filed an identical
motion in the Eden matter within just 12 days of learning of the
dismissal. However, respondents provide a citation to an illegible
document in the record as support for this fact.
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remedy was a malpractice action against their former attorney,
Rosen. The court noted that because appellants had retained the
same counsel in the Eden case, they were in communication with
him. The court expressed concern with appellants’ failure to
follow up with Rosen under the circumstances:
“So you’re saying, . . . when they retained
Rosen for this other case [(the Eden case)], at some
point in time, they would say, hey, by the way, what’s
going on with getting our house fixed, what’s going on
with that case? And the assumption is they had the
opportunity to talk about it. They didn’t. Nothing
happened. It wasn’t like he was unavailable and
everybody kind of just sat on their . . . bottoms while
the case was just wallowing in purgatory; am I
correct?”
The court noted that the “equities” “pivot[ed] back to the
defense because of the passage of time, because of the [c]ourt’s
interpretation and perspective about laches and prejudice.” The
court denied both motions to set aside the dismissal.3
3 Appellants attempt to characterize the trial court’s decision
as based solely on the court’s thought that appellant had an
alternative avenue to address the claim in the form of a
professional negligence claim against Rosen. A review of the
record and the court’s articulation of its reasoning undermines
this narrow characterization of the court’s decision. The court
heard lengthy argument and made its decision based on a
weighing of the equities involved. At no time did the court
assume that appellants had a valid and timely claim against
Rosen. The court did note that such an action was the
appropriate recourse, but made no legal analysis of the timeliness
or validity of such a claim. Under the circumstances, we decline
to discuss this claim of error further.
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On September 4, 2020, appellants filed their notice of
appeal from the order after judgment.
DISCUSSION
I. Applicable law and standard of review
Appellants challenge the trial court’s order on two grounds.
First, they assert that they were entitled to relief under Code of
Civil Procedure section 473 (section 473). Alternatively,
appellants assert that they are entitled to relief on the equitable
ground of extrinsic fraud or mistake.
Section 473 permits a court, “upon any terms as may be
just, [to] 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.” (§ 473, subd. (b).) The provisions of section
473 should be liberally construed so that lawsuits are determined
on their merits and one party is not able to take advantage of
another party’s excusable mistakes or errors. (Riskin v. Towers
(1944) 24 Cal.2d 274, 279.) A trial court has “‘“wide discretion”’”
to grant relief under this statute. (Toho-Towa Co., Ltd. v.
Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096,
1111.) The moving party bears the burden of showing a right to
relief. (Austin v. Los Angeles Unified School Dist. (2016) 244
Cal.App.4th 918, 928 (Austin).)
Section 473 expressly provides that an application for relief
pursuant to this section “shall be made within a reasonable time,
in no case exceeding six months, after the judgment, dismissal,
order, or proceeding was taken.” (§ 473, subd. (b).) Thus, if more
than six months have passed since the entry of judgment, relief
under section 473 is unavailable. (Rappleyea v. Campbell (1994)
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8 Cal.4th 975, 980 (Rappleyea).) “This six-month time limitation
is jurisdictional; the court has no power to grant relief under
section 473 once the time has lapsed.” (Austin, supra, 244
Cal.App.4th at p. 928.) Thus, a party seeking relief under section
473 must show two elements: (1) its own mistake, inadvertence,
surprise, or excusable neglect; and (2) that the motion was made
within six months from the date of dismissal. (§ 473, subd. (b).)
However, after six months, a trial court may still vacate a
judgment on equitable grounds even if statutory relief is
unavailable. (Rappleyea, supra, 8 Cal.4th at p. 981.) Such relief
is available “when circumstances extrinsic to the litigation have
unfairly cost a party a hearing on the merits.” (Ibid.) The party
seeking to set aside the judgment must still present a satisfactory
excuse for his or her need for relief and must demonstrate
diligence in seeking to set aside the judgment. (Id. at p. 982.)
After six months from the date of the final judgment, “‘there is a
strong public policy in favor of the finality of judgments and only
in exceptional circumstances should relief be granted.’” (Id. at
pp. 981-982.)
The standard of review under both theories is abuse of
discretion. (Rappleyea, supra, 8 Cal.4th at p. 981 [“We review a
challenge to a trial court’s order denying a motion to vacate a
default on equitable grounds as we would a decision under
section 473: for an abuse of discretion.”].) Under this standard,
the appropriate test is “‘whether the trial court exceeded the
bounds of reason.’” (Austin, supra, 244 Cal.App.4th at p. 929.)
II. The motion for relief under section 473 was properly
denied
Section 473 requires that the motion for relief be made
“within a reasonable time, in no case exceeding six months, after
8
the judgment, dismissal, order, or proceeding was taken.” (§ 473,
subd. (b).) This time limit is jurisdictional. (Austin, supra, 244
Cal.App.4th at p. 928.) Appellants’ case against respondents was
dismissed without prejudice as to USAA on July 11, 2017, and as
to K-Mac on July 3, 2017. Appellants’ motions to vacate the
dismissals were not filed until March 9, 2020, more than two and
a half years after the dismissals. Therefore, relief was not
available to appellants under section 473.
Even if the six-month time period had not passed,
appellants were still required to show that their conduct could be
described as inadvertence or excusable neglect. (§ 473, subd. (b).)
“A party seeking discretionary relief on the ground of attorney
error must demonstrate that the error was excusable, since the
attorney’s negligence is imputed to the client.” (Huh v. Wang
(2007) 158 Cal.App.4th 1406, 1419.) Thus, “‘[t]he inexcusable
neglect of an attorney is usually not a proper basis for granting
the client’s motion under section 473.’” (Ibid.) Instead, “[t]he
client’s redress for inexcusable neglect by counsel is, of course, an
action for malpractice.” (Carroll v. Abbott Laboratories, Inc.
(1982) 32 Cal.3d 892, 898.)
The record shows that long periods of time passed during
which appellants neglected to inquire about the status of the case
with their attorney. For example, over six months passed
between July 10, 2017, when Rosen reached out to appellants for
their signed verifications, and January 23, 2018, when appellants
next inquired about the case. Sixteen months then passed until
appellants next inquired about the case in May 2019. Seven
months later, in December 2019, appellants discovered that the
matter had been dismissed in June 2017. Even if appellants’
motion for relief had been timely filed, the trial court acted
9
within its discretion in determining that such actions were not
excusable neglect. This is particularly so because, as the trial
court noted, appellants had hired the same attorney to prosecute
the Eden case and were in communication with him about that
matter.
In sum appellants failed to establish the two elements
required to prevail on a motion for relief pursuant to section 473.
The motion was properly denied.
III. No abuse of discretion in denying equitable relief
Appellants ask that we reweigh the equities in this case to
determine that they are entitled to relief on the ground of
extrinsic fraud or mistake. Appellants argue that such equitable
relief is appropriate “when circumstances extrinsic to the
litigation have unfairly cost a party a hearing on the merits.”
(Rappleyea, supra, 8 Cal.4th at p. 981.) Appellants argue that
due to the deceitful and negligent acts of Rosen, they were
deprived of the chance to present their case and are entitled to
relief.
“Where a client is unknowingly deprived of effective
representation by counsel the client will not be charged with
responsibility for misconduct if the client acts with due diligence
in moving for relief after discovering the attorney’s neglect and if
the other side will not be prejudiced by the delay.” (Aldrich v.
San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 739
(Aldrich).) Our review of the outcome of the trial court’s
weighing of these factors is confined to a determination of
whether the court’s decision exceeded the bounds of reason.
(Rappleyea, supra, 8 Cal.4th at p. 981.)
Whether a party has acted with diligence is a question of
fact for the trial court. (Younessi v. Woolf (2016) 244 Cal.App.4th
101137, 1144-1145.) It is within a trial court’s discretion to find
that a period of 10 weeks from the date a party discovers its
attorney’s negligence to the date it files the motion for relief is
not sufficient diligence. (Id. at p. 1144.) In Younessi, the court
reprimanded the moving party’s attorney: “when he substituted
in as plaintiffs’ counsel a month later, he still took no action to
seek relief from this default. Rather, [he] waited another month
and a half for [his colleague] to prepare the brief. Even then,
nothing was done for another two weeks when plaintiffs
associated in a second attorney. Once the motion for relief from
default was prepared, it took another two weeks to file it with
this court.” (Id. at p. 1144.) As Younessi shows, it was within the
trial court’s discretion to view a 10-week delay in seeking relief as
unreasonable. We note that, unlike the moving party in
Younessi, appellants provide no excuse or explanation for the 10-
week delay in this matter.
In addition there was evidence that, due to the passage of
time and loss of evidence, there would be prejudice to the
defendants. USAA’s counsel argued to the trial court:
“USAA would be prejudiced, not only due to the
amount of time for the folks that still are employed as
employees . . . and [their] own recollection . . . . But
very much of it is going to be testimonial, [and] we’ve
submitted a declaration from my client’s human
resources people that says at least two of the people
that have handled this claim have moved onto
retirement, so they’re not longer under our auspices
or control or my client’s control to present them as
witnesses unless they cooperate.”
K-Mac’s counsel made a similar argument:
“And now they want to have a second bite at [the]
apple all these years later, and that is highly
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prejudicial to my client as well as [c]odefendant.
And, given the passage of time, you know, there is a
huge concern with destruction of evidence in addition
to loss of witnesses. I mean, the home is not going to
be in the condition it was in . . . 2014. And so it
leaves K-Mac to believe that it is going to risk trial
based wholly on speculation without any concrete
evidence, without witnesses, and that seems not only
to be prejudicial but a waste of the [c]ourt’s
resources.”
In reviewing the equities in this case, including the
appellants’ failure to diligently follow up with their attorney,
appellants’ failure to promptly file for relief, and the potential for
prejudice to the respondents, we decline to find an abuse of
discretion on the part of the trial court in denying equitable
relief.
IV. The cases cited by appellants are distinguishable
The cases cited by appellants do not change the result.
Daley v. County of Butte (1964) 227 Cal.App.2d 380 involved a
motion pursuant to section 473 that was brought several weeks
after the trial court granted the county’s motion to dismiss based
on lack of prosecution. (Daley, at pp. 386-387.) While the case
contains language suggesting that “[c]lients should not be forced
to act as hawklike inquisitors of their own counsel, suspicious of
every step and quick to switch lawyers,” we note that the facts
are distinguishable from the case before us. (Id. at p. 392.)
There the plaintiff made 12 to 15 calls to her lawyer after she
became worried about the progress of her case and subsequently
became severely ill. (Id. at p. 386.) No such extenuating
circumstances exist here.
Appellants next cite Fleming v. Gallegos (1994) 23
Cal.App.4th 68, another case involving a dismissal for failure to
12
prosecute. (Id. at pp. 71-72.) The appeal was a direct appeal from
the dismissal under the discretionary dismissal statutes. (Code
Civ. Proc., §§ 583.410, 583.420.) Thus, the jurisdictional time
limit under section 473 was not considered. Further, the court
made it clear that the plaintiff was diligent throughout the case:
“Fleming inquired of and checked up on her attorneys
frequently. She sought replacement counsel
reasonably promptly and reviewed her superior court
filed personally. She timely employed counsel to
resist the discretionary dismissal motion. Under
these circumstances, we cannot say she was negligent
in prosecuting her action.” (Fleming, supra, at p. 74.)
Here, in contrast, appellants did not frequently check up on the
status of the case, review the file, nor engage new counsel to
resist the dismissal motions.
Appellants also cite Seacall Development, Ltd. v. Santa
Monica Rent Control Bd. (1999) 73 Cal.App.4th 201 (Seacall).
Like the cases previously discussed, Seacall involved a dismissal
for failure to prosecute. (Id. at p. 204.) Both parties learned of
the dismissal on January 22, 1998, and Seacall filed a motion for
relief from the dismissal on equitable grounds on February 10,
1998. Thus, the motion was filed within three weeks of the date
the party seeking relief learned of the dismissal. (Ibid.) The
Seacall court acknowledged that factors to be considered in
granting equitable relief in this circumstance include “the client’s
own conduct in pursuing and following up the case [citation],
[and] whether the defendant would be prejudiced by allowing the
case to proceed [citation].” (Id. at p. 205.) While the Seacall
court noted that the moving party had failed to contact its
attorney for two years, it also noted that prejudice to the
defendant was nonexistent because a full administrative
13
proceeding had already taken place: “In this case the prejudice
would be virtually nil because there are no witnesses who might
disappear or whose memories might fade. The issues before the
trial court on a petition for administrative mandamus are purely
legal and governed by the administrative record.” (Id. at p. 207.)
After weighing the factors, including the moving party’s
abandonment by its attorney and the lack of prejudice to the
defendant, the Seacall court ruled that the dismissal should be
vacated. (Id. at p. 208.)
No administrative record exists in this case. As
respondents point out, the fire and insurance investigation
occurred in 2014 over six years ago. Thus, in contrast to Seacall,
the trial court was entitled to weigh the prejudice factor in favor
of respondents.
Finally, appellants point to Aldrich, supra, 170 Cal.App.3d
725, which presents some similarities to the present case,
including that the plaintiff’s case was dismissed on an unopposed
motion for failure to respond to discovery. (Id. at pp. 731-732.)
The plaintiff’s motion to set aside the judgment of dismissal,
made nearly three years later, was based on the grounds that
“[plaintiff] had a meritorious case, that the judgment had been
obtained by [defendants] by mistake which prevented [plaintiff]
from presenting the case to the court, and that on the date the
action was dismissed and the judgment entered . . . , [plaintiff]
had no attorney of record by reason of the fact that [his attorney]
had been suspended from the practice of law by the Supreme
Court of California . . . .” (Id. at p. 732.)
The Aldrich court made it clear that the trial court’s
decision was based on its equitable power, not section 473, as “the
trial court did not have legal jurisdiction, under section 473, to
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vacate and set aside its order of dismissal which had been filed
more than two years and nine months earlier.” (Aldrich, supra,
170 Cal.App.3d at p. 735.) In discussing the equities, the Aldrich
court noted that the plaintiff had filed declarations “which were
sufficient to establish that he had a meritorious case.” (Id. at
p. 738.) The court also weighed the remaining equities,
considered the passage of time, and noted that “where the
aggrieved party makes a strong showing of diligence in seeking
relief after discovery of the facts, and the other party is unable to
show prejudice from the delay, the original negligence in allowing
the default to be taken will be excused on a weak showing.” (Id.
at p. 740.) There, the plaintiff learned on March 16, 1984, that
his case had been dismissed and on April 6, 1984, with a different
attorney, filed a motion to vacate the order. The 21-day period
was not unreasonable, and the defendants’ “single declaration in
opposition to [plaintiff’s] motion did not set forth substantial
evidence of missing witnesses, evidence destroyed, and the like,
to establish prejudice.” (Ibid.) Ultimately, the Aldrich court
found that the trial court’s actions and decision “fully comport[ed]
with the standards for sound judicial discretion set forth in the
opinions of our Supreme Court.” (Ibid.)
The trial court’s denial of relief in this matter also
comported with the standards for sound judicial discretion. First,
there was evidence of neglect on the part of appellants and that
appellants may have been more concerned with the Eden case
than the present matter. Further, there was evidence of
prejudice to respondents, including loss of evidence concerning
the fire and its damage, as well as potential loss of memory and
witnesses. Unlike the Aldrich plaintiff, appellants here make no
arguments concerning the merits of their case against
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respondents. Finally, the passage of over two months between
the date they allegedly learned of the dismissal and the date they
sought reinstatement of the case does not work in their favor.
While legitimate arguments can be made on both sides, the trial
court’s balancing of the equities was well within the bounds of
reason. No abuse of discretion occurred.
DISPOSITION
The order is affirmed. Respondents are awarded their costs
of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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