Broussalian v. Broussalian CA2/7 ( 2021 )

Filed 12/14/21 Broussalian v. Broussalian CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
STEVE BROUSSALIAN, B311983
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19BBCV00671)
SUSAN ARZOUMANIAN-
BROUSSALIAN et al.,
Defendants and Respondents.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, John J. Kralik, Judge. Affirmed.
Heller & Edwards and Mark L. Edwards for Plaintiff and
Appellant.
Shahen Hairapetian for Defendants and Respondents
Susan Arzoumanian-Broussalian and Sarkis Allen Arzomanian.
___________________________
After the trial court sustained a demurrer to Steve
Broussalian’s second amended complaint without leave to amend
and dismissed the case, Broussalian moved to vacate the
dismissal pursuant to Code of Civil Procedure section 473,
subdivision (b),1 arguing his counsel had been mistaken when she
informed the court nothing further could be alleged to cure the
pleading’s legal defect. The court denied the motion. Broussalian
has appealed the denial of his motion to vacate but not the order
dismissing his lawsuit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Broussalian’s Complaints and the Demurrer to the
Second Amended Complaint
Broussalian filed a verified complaint on July 30, 2019, a
verified first amended complaint on January 6, 2020 and the
operative verified second amended complaint on April 1, 2020. In
his second amended complaint Broussalian alleged he; his sister,
Susan Arzoumanian-Broussalian; and Susan’s husband, Sarkis
Allen Arzoumanian, on March 26, 2002 obtained title to certain
property as joint tenants, and Broussalian, along with the
siblings’ mother, subsequently began residing at the property.
In 2012 Broussalian signed a deed that stated he
quitclaimed his rights in the property to Susan and Sarkis as a
gift. The quitclaim deed was recorded on May 29, 2012,
concurrently with an instrument transferring Susan and Sarkis’s
rights in the property to the 2000 Sarkis Allen Arzoumanian and
Susan Lydia Arzoumanian Revocable Trust (the Trust), of which
Susan and Sarkis were cotrustees. Although the quitclaim deed
was valid on its face, it was void or voidable, Broussalian alleged,
1 Statutory references are to this code.
2
because Susan and Sarkis exerted undue influence over
Broussalian to have him sign it. Broussalian had signed the
quitclaim deed without knowledge of its nature and effect on his
ownership rights, which he discovered for the first time on
August 4, 2015. He had also signed the deed in reliance on
Sarkis’s representations that his signature was necessary to stop
harassment by members of the homeowners association and to
prevent a lawsuit threatened against him by an association
member; and, contrary to Sarkis’s assurances, the harassment
from the homeowners association members continued.
The second amended complaint alleged causes of action for
undue influence, cancellation of deed, quiet title, intentional
misrepresentation and declaratory relief. It attached exhibits
and Broussalian’s declaration in which he averred under penalty
of perjury numerous supporting facts.
On June 3, 2020 Susan and Sarkis, as individuals and in
their capacities as cotrustees of the Trust (collectively the
Arzoumanians), demurred to the second amended complaint, as
they had to Broussalian’s prior complaints, on the ground each of
his causes of action was time-barred. The Arzoumanians argued
Broussalian’s causes of action were subject to various limitations
periods—such as four years from the 2012 date the quitclaim
deed was signed or recorded or three years from the August 2015
date Broussalian discovered the deed’s nature and effect on his
ownership rights—all of which had expired before the July 30,
2019 date Broussalian filed his original complaint.
In opposing the demurrer Broussalian contended the
statutes of limitations for all causes of action were tolled
3
pursuant to section 328 because he had a disability:2 As alleged
in the second amended complaint, Broussalian suffered
symptoms of “stress, headaches, anxiety, segmented sleep
patterns, nightmares, panic attacks, emotional fatigue and
withdrawal for much of his life,” leading him to seek treatment
from Dr. Silvio Del Castillo; Dr. Del Castillo began prescribing
medication for the symptoms, which the doctor stated resulted
from stress due to Broussalian’s living situation and relations
with family members; and Broussalian was also under the care of
psychiatrist Dr. Dirk De Brito from 2014 to 2015. Broussalian
asserted, even if the court were to find insufficient evidence of a
disability for tolling under the statute, it could still grant
equitable tolling based on the Arzoumanians’ undue influence.
In their reply brief the Arzoumanians argued none of
Broussalian’s symptoms showed lack of legal capacity to make
decisions within the meaning of section 328 and Broussalian had
avoided stating under penalty of perjury in his verified second
amended complaint he lacked that capacity. The Arzoumanians
asserted the untimeliness of Broussalian’s claims was also not
cured by the equitable tolling doctrine, which only applied to toll
the limitations period while the claimant pursued an alternative
remedy.
2 Section 328 provides, “If a person entitled to commence an
action for the recovery of real property . . . is, at the time title
first descends or accrues, either under the age of majority or
lacking legal capacity to make decisions, the time, not exceeding
20 years, during which the disability continues is not deemed a
portion of the time in this chapter limited for the commencement
of the action, . . . but the action may be commenced . . . within the
period of five years after the disability shall cease.”
4
On October 13, 2020 the trial court sustained the
Arzoumanians’ demurrer to the second amended complaint
without leave to amend and dismissed the case. Among other
reasons the court, observing the second amended complaint “still
fails to squarely allege” Broussalian lacked the legal capacity to
make decisions, found Broussalian had not sufficiently alleged or
provided supporting exhibits showing he lacked that capacity.
The court also explained Broussalian’s counsel had conceded at
the hearing on the demurrer she had “no further ability to amend
the complaint to allege [Broussalian’s] legal incapacity.” It
rejected Broussalian’s equitable tolling argument in part because
he had failed to cite authority showing the doctrine applied when
a case involved undue influence.
2. Broussalian’s Motion To Vacate Dismissal
On October 23, 2020 Broussalian moved to vacate the
dismissal pursuant to section 473, subdivision (b), on the ground
his counsel had mistakenly advised the court there were no
additional facts that could be alleged to support Broussalian’s
legal incapacity.3 Broussalian argued the court had authority to
3 Broussalian also moved, pursuant to section 1008,
subdivision (a), for reconsideration of the trial court’s order
sustaining the demurrer to the second amended complaint. As
stated in its January 8, 2021 order, the trial court determined it
lacked jurisdiction to hear Broussalian’s motion for
reconsideration and took the motion off calendar. Broussalian
does not challenge that ruling. (See Marshall v. Webster (2020)
54 Cal.App.5th 275, 281 [“[i]t is settled law that a motion for
reconsideration is ineffective if it is filed after entry of
judgment”]; APRI Ins. Co. v. Superior Court (1999)
76 Cal.App.4th 176, 181-182 [trial court is without jurisdiction to
grant reconsideration after judgment has been entered].)
5
grant relief on the basis of “excusable mistake, inadvertence, or
neglect.”4
As set forth in his motion and supported by his
accompanying declaration, Broussalian had been diagnosed with
attention deficit disorder (“ADD”) as a child, a disorder which
was later listed as “ADD/ADHD” on his recent medical records (a
change of nomenclature rather than of diagnosis);
Dr. Del Castillo, who had confirmed the diagnosis and continued
treatment of his disorder, and Dr. De Brito had prescribed
Adderall for his ADD/ADHD, a medication that he had taken
from 2012 to 2016 when the Arzoumanians badgered him to stop
taking the medication during an unannounced visit to the
property; Dr. Del Castillo had periodically prescribed a higher
than normal dosage to control his worsening symptoms; his
ADD/ADHD symptoms were severe enough to be deemed a
disability, resulting in Dr. Del Castillo referring him to two social
workers; and in 2016 he applied for food stamps because he was
unable to work in his condition. Broussalian attached as an
exhibit to his declaration his medical records showing his
diagnosis and the medication Dr. Del Castillo prescribed to
treat it.
As explained in Broussalian’s motion and the
accompanying declaration of his attorney Kim Cameron,
Cameron had failed to check with Broussalian before informing
the court there were no additional allegations to be made
regarding Broussalian’s legal incapacity. Cameron had been
unaware at the October 13, 2020 hearing on the Arzoumanians’
4 Capitalizations and bold typeface used in the motion to
vacate have been omitted.
6
demurrer of Broussalian’s ADD/ADHD diagnosis and the
associated Adderall prescription. In prior conversations with
Broussalian, Cameron had asked him for his diagnosis, he had
given her the list of his symptoms, and she had not pressed him
further. (In his declaration Broussalian stated he had believed
the symptoms of his disorder were what the trial court had
required.) When Cameron informed him on October 14, 2020 of
the court’s ruling sustaining the Arzoumanians’ demurrer,
Broussalian told her of both the diagnosis and the prescription.
On November 30, 2020 the Arzoumanians filed their
opposition to Broussalian’s motion. The Arzoumanians asserted
Cameron’s claimed mistake of failing to check with Broussalian
before informing the court of the absence of additional allegations
to support a showing of Broussalian’s legal incapacity did not
constitute excusable neglect and, even if it did, affixing the
“ADD/ADHD” label to Broussalian’s previously alleged symptoms
did not change the fact he had failed to show his lack of legal
capacity to make decisions. They also contended the motion
should be denied because Broussalian had failed to submit a
proposed third amended complaint with the motion, as required
by the statute. Relying on Broussalian’s allegation in the second
amended complaint that in signing the quitclaim deed he had
been “acting solely in self-preservation to prevent any further
harassment [by] the [homeowners association],” the
Arzoumanians further argued Broussalian’s admission he had
engaged in a deliberative process in signing the deed confirmed
he did not lack the legal capacity to make decisions. 5
5 The Arzoumanians separately argued Broussalian’s legal
capacity to make decisions was shown by Broussalian’s multiple
other lawsuits during the relevant time period—including one in
7
On December 7, 2020 Broussalian filed his reply brief. In
arguing the trial court should exercise its discretion to set aside
the dismissal, Broussalian stated he did not dispute the
Arzoumanians’ assertion the mandatory provisions of section 473,
subdivision (b), were inapplicable. He supported his brief with
additional declarations, including one by Dr. Del Castillo, in
which the doctor stated ADD/ADHD was recognized as a
disability under the Americans with Disabilities Act of 1990;
Broussalian, Dr. Del Castillo’s patient since March 2010, had
suffered from ADD/ADHD for most of his life and continued to
present with the disorder; in addition to symptoms of
ADD/ADHD, Broussalian had reported feelings of anxiety that
the doctor attributed to Broussalian’s family relationships;
ADD/ADHD affected Broussalian’s ability to focus on and
complete tasks in a timely fashion; and Broussalian’s “failure to
complete the task of filing a lawsuit against his family members
within a set time period [was] entirely in keeping with the effects
of his disability.” Dr. Del Castillo also described the time periods
he prescribed Adderall for Broussalian and its effectiveness in
controlling Broussalian’s symptoms.
On December 18, 2020 the Arzoumanians filed a response,
supported by several declarations, to Dr. Del Castillo’s
which Broussalian, while representing himself, successfully
obtained a restraining order against an attorney—and
Broussalian’s status as a licensed real estate agent and a
pharmacy technician. In support of that argument the
Arzoumanians requested the trial court take judicial notice of
copies of court records, as well as records of the California
Department of Real Estate and California Department of
Consumer Affairs, Board of Pharmacy—a request the trial court
granted.
8
declaration. In addition to objecting to portions of the
declaration, they observed Dr. Del Castillo failed to state
Broussalian had lacked the legal capacity to make decisions when
Broussalian signed the quitclaim deed.
On December 23, 2020 Broussalian filed a surreply brief, as
well as the declaration of Dr. Kristen Switaj. Dr. Switaj averred
she was a licensed psychologist; Broussalian had been her patient
since November 20, 2020; common symptoms of ADD/ADHD
included “difficulty following through on a task or thought
(starting but not finishing it), forgetfulness, not great attention to
detail, and being easily distracted, with scattered or racing
thoughts”; Broussalian presented with “traditional symptoms of
ADHD, including inattention, hyperactivity, and fidgeting”; and
Broussalian was at the time still taking Adderall, as prescribed
by Dr. Del Castillo, which helped limit any impact on Broussalian
of his symptoms at his work.
The Arzoumanians on December 24, 2020 objected to
Broussalian’s surreply brief and Dr. Switaj’s declaration. They
argued, although the court on December 11, 2020 had permitted
the Arzoumanians to respond to new material Broussalian had
included for the first time in his reply brief, Broussalian, in
contrast, had not sought any authorization to file any additional
material, including any surreply papers, which should be
stricken. They also contended Dr. Switaj’s declaration failed to
show Broussalian lacked the legal capacity to make decisions:
Being “fidgety, inattentive, or hyperactive” was insufficient to toll
the statute of limitations. To the contrary, Dr. Switaj’s
acknowledgment that Adderall, which Broussalian had admitted
using from 2012-2016, helped limit Broussalian’s symptoms at
his work, indicated Broussalian did have the capacity to make
9
decisions during the period for which Broussalian sought tolling
of the statute of limitations.
3. The Trial Court’s Order Denying the Motion To Vacate
Dismissal
After hearing argument and taking the matter under
submission, the trial court on January 8, 2021 issued a 10-page
order denying Broussalian’s motion. The court found the
statements in Cameron’s declaration did not rise “to the level of
attorney fault based on mistake, inadvertence, surprise, or
neglect for mandatory relief, or mistake, inadvertence, surprise,
or excusable neglect.” Observing Cameron had “ample time” to
communicate with Broussalian to determine whether he “truly
suffered from a disability that caused him to lack legal capacity
to make decisions pursuant to [section] 328,” the court stated, “As
a result of . . . Cameron’s inability to truthfully allege in the
complaint that [Broussalian] suffered from a disability that
caused him to lack legal capacity to make decisions at the time
the action accrued, there were three rounds of pleadings and
thereby three rounds of demurrers and, thus, ample opportunity
to amend the complaint.”
The court pointed to the Arzoumanians’ argument
Dr. Del Castillo’s declaration failed to provide sufficient facts to
show Broussalian lacked the legal capacity to make decisions as
required under section 328 and stated, even if it were to consider
Dr. Switaj’s declaration, there would be no effect on the court’s
ruling because that declaration failed to support any showing of
Broussalian’s lack of legal capacity pursuant to section 328.
The court concluded the additional information Broussalian
presented to Cameron after the court had sustained the
Arzoumanians’ demurrer without leave to amend was “not
10
fundamentally different than the information that . . . Cameron
already had.” It continued, “Cameron’s initial decision that this
information was insufficient to find an incapacity tolling the
statute of limitations was a correct one.” Cameron’s
unwillingness to make an allegation that was “not reasonably
backed by the evidence,” the court explained, was not a mistake
but “the proper way to proceed.”
DISCUSSION
1. Governing Law and Standard of Review
Section 473, subdivision (b), provides in part, “The court
may, upon any terms as may be just, relieve a party or his or her
legal representative from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect. Application for this
relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application
shall not be granted.” The application must also be made “within
a reasonable time,” not exceeding six months, after the judgment,
dismissal, order or proceeding. (§ 473, subd. (b).)
A party seeking discretionary relief “‘on the basis of
mistake or inadvertence of counsel must demonstrate that such
mistake, inadvertence, or general neglect was excusable because
the negligence of the attorney is imputed to his client and may
not be offered by the latter as a basis for relief.’” (Zamora v.
Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)
Neglect or mistake is excusable only if a reasonably prudent
person under similar circumstances might have made the same
error. (Bettencourt v. Los Rios Community College Dist. (1986)
42 Cal.3d 270, 276; accord, Zamora, at p. 258; Huh v. Wang
(2007) 158 Cal.App.4th 1406, 1423; see Solv-All v. Superior Court
11
(2005) 131 Cal.App.4th 1003, 1007.) “[T]he discretionary relief
provision of section 473 only permits relief from attorney error
‘fairly imputable to the client, i.e., mistakes anyone could have
made’”; “‘[c]onduct falling below the professional standard of care,
such as failure to timely object or to properly advance an
argument, is not . . . excusable.’” (Zamora, at p. 258.)
Section 473, subdivision (b), also provides for mandatory
relief “[n]otwithstanding any other requirements of [the] section”
to vacate a default judgment or dismissal “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 . . . unless the court finds that
the default or dismissal was not in fact caused by the attorney’s
mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).) If
the statutory conditions are satisfied, the court must grant relief.
(Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1008;
Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995)
31 Cal.App.4th 1481, 1487.)
A party seeking relief under section 473, subdivision (b),
bears the burden of proof. (In re Marriage of Kieturakis (2006)
138 Cal.App.4th 56, 80.) “‘A ruling on a motion for discretionary
relief under section 473 shall not be disturbed on appeal absent a
clear showing of abuse.’” (Zamora v. Clayborn Contracting
Group, Inc., supra, 28 Cal.4th at p. 257.) “The appropriate test
for abuse of discretion is whether the trial court exceeded the
bounds of reason.” (Strathvale Holdings v. E.B.H. (2005)
126 Cal.App.4th 1241, 1249; accord, Grados v. Shiau (2021)
63 Cal.App.5th 1042, 1049.)
12
If a ruling turns on a disputed issue of fact, the trial court’s
express and implied factual determinations are not disturbed on
appeal if supported by substantial evidence. (Strathvale
Holdings v. E.B.H., supra, 126 Cal.App.4th at p. 1250;
see Winograd v. American Broadcasting Co. (1998)
68 Cal.App.4th 624, 632 [“[i]f the trial court’s resolution of [a
disputed] factual issue is supported by substantial evidence, it
must be affirmed”]; see also Zamora v. Clayborn Contracting
Group, Inc., supra, 28 Cal.4th at p. 258 [“‘“where there is a
substantial conflict in the facts stated, a determination of the
controverted facts by the trial court will not be disturbed”’”].)
When, however, the court’s order is based on a finding that the
moving party failed to carry its burden of proof, the question for
the reviewing court as to that finding is whether it is erroneous
as a matter of law. (See Juen v. Alain Pinel Realtors, Inc. (2019)
32 Cal.App.5th 972, 978-979 [“‘where the issue on appeal turns
on a failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the
appellant as a matter of law’”]; Almanor Lakeside Villas Owners
Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [same].)
“‘Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Juen, at p. 979.)
“[T]o the extent that the applicability of the mandatory
relief provision does not turn on disputed facts, but rather,
presents a pure question of law, it is subject to de novo review.”
(Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.)
13
2. Broussalian Failed To Establish the Trial Court Abused
Its Discretion in Denying Discretionary Relief
Asserting the trial court abused its discretion in denying
his motion to vacate dismissal under the discretionary relief
provisions of section 473, subdivision (b), Broussalian contends
he presented sufficient evidence of mistake or excusable neglect
and substantially complied with section 473, subdivision (b)’s
requirement that his motion be accompanied by the proposed
pleading. Because he had been diligent in seeking relief and the
Arzoumanians would not be prejudiced by the granting of relief,
he argues, he only had to support his showing of excusable
neglect or mistake with “very slight evidence.” (See Mink v.
Superior Court (1992) 2 Cal.App.4th 1338, 1343 [“[w]hen the
moving party promptly seeks relief [under section 473,
subdivision (b),] and there is no prejudice to the opposing party,
very slight evidence is required to justify relief”]; see also Austin
v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918,
932.)
Broussalian misapprehends the governing principles of
appellate review. Because Broussalian had the burden of proof,
the standard for reviewing the trial court’s determination of the
disputed factual issue relating to his attorney’s excusable neglect
or mistake is not whether the evidence was sufficient to support a
finding of excusable neglect or mistake but, rather, whether the
evidence compelled that finding as a matter of law, taking into
consideration the “very slight evidence” standard of proof that
applied in the trial court. (Cf. Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010.) Broussalian, however, failed to discuss the
Arzoumanians’ evidence and did not attempt to demonstrate the
evidence in his favor was uncontradicted and unimpeached, as
14
required for us to reverse the trial court’s finding that he had
failed to carry his burden of proving Cameron’s statement to the
court constituted mistake or excusable neglect within the
meaning of section 473, subdivision (b). (See Juen v. Alain Pinel
Realtors, Inc., supra, 32 Cal.App.5th at pp. 978-979; see also Doe
v. Roman Catholic Archbishop of Cashel & Emly (2009)
177 Cal.App.4th 209, 218 [“[a] party who challenges the
sufficiency of the evidence to support a finding must set forth,
discuss, and analyze all the evidence on that point, both favorable
and unfavorable”].)
Moreover, Broussalian failed to show, as he must, that any
error by the trial court was prejudicial. (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 800 [error justifies reversal in a civil
action only if it is reasonably probable a different result would
have been reached absent the error]; see Cal. Const., art. VI, § 13;
Code Civ. Proc., § 475.) In response to Broussalian’s argument
that Cameron should not have told the trial court at the
October 13, 2020 hearing there were no additional facts to be
alleged regarding Broussalian’s legal incapacity without first
checking with him, the trial court stated the additional
information was “not fundamentally different” from what
Cameron already had alleged—that is, the trial court found the
additional factual allegations would not have made any difference
in establishing Broussalian’s legal incapacity to make decisions
and, thus, in showing the statute of limitations should be tolled.
Broussalian did not address that finding until his appellate reply
brief. Even if not forfeited (see, e.g., Golden Door Properties, LLC
v. Superior Court (2020) 53 Cal.App.5th 733, 786 [“issues not
addressed as error in a party’s opening brief with legal analysis
and citation to authority are forfeited”]), Broussalian’s belated
15
argument failed to establish allowing a third amended complaint
would not be futile. (See Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 726 [“‘[l]eave to amend should not be granted
where . . . amendment would be futile’”].)
In his reply brief Broussalian posited that it was
reasonable his disability, even while being treated with Adderall
to manage the symptoms, “hindered him in pursuing this legal
action within the statute of limitations period.” Perhaps that is
so; but, putting aside whether Broussalian’s description of his
mental state really differed from the accounts previously given,
that explanation fails to satisfy section 328’s requirement that,
for tolling to apply, the litigant must “lack[ ] legal capacity to
make decisions.” This standard, which is also contained in
section 372 governing appointment of a guardian ad litem,
requires evidence the party, through mental disease or disorder
or developmental disability, is unable to understand the nature of
the relevant proceedings. (See In re James F. (2008) 42 Cal.4th
901, 910, 916; In re Samuel A. (2021) 69 Cal.App.5th 67, 78, 82,
fn. 9.) Broussalian failed to show how the proposed amendments
to his complaint would change the legal effect of the pleading.
(See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [the burden
is on the plaintiff to show “in what manner he can amend his
complaint and how that amendment will change the legal effect
of his pleading”]; Ivanoff v. Bank of America, N.A., supra,
9 Cal.App.5th at p. 726 [same].) Absent such a showing, we
necessarily conclude any error by the trial court in not vacating
the dismissal and allowing Broussalian to file a third amended
complaint was harmless.
As for Broussalian’s further contention, also made for the
first time in his reply brief, that a third amended complaint
16
might demonstrate his entitlement to equitable tolling,
Broussalian fails to explain how the additional facts presented
would change the legal effect of his operative pleading.
Broussalian contends he contacted the California Department of
Real Estate to pursue a remedy to restore his ownership rights—
the basis for his claim to equitable tolling—but ceased that effort
based in part on factors related to his disability. However,
Broussalian had alleged in his second amended complaint that he
had contacted the Department but the Arzoumanians, aware of
his actions, had taken steps to prevent him from proceeding with
the remedy. The Arzoumanians successfully demurred to the
second amended complaint on the ground Broussalian’s contact
with the Department did not support equitable tolling. In his
appellate briefing Broussalian provides no reasoned analysis to
show how his ADD/ADHD diagnosis and Adderall prescription—
the only facts Cameron identified in the motion to vacate as
previously unknown to her—relate to the elements of equitable
tolling or impact the applicability of the doctrine in this case.
(See, e.g., Saint Francis Memorial Hospital v. State Dept. of
Public Health (2020) 9 Cal.5th 710, 724-725 [“equitable tolling
today applies when three ‘elements’ are present: ‘[(1)] timely
notice, and [(2)] lack of prejudice, to the defendant, and
[(3)] reasonable and good faith conduct on the part of the
plaintiff’”; “[t]hese requirements are designed to ‘balanc[e] . . . the
injustice to the plaintiff occasioned by the bar of his claim against
the effect upon the important public interest or policy expressed
by the [operative] limitations statute’”].) In any event,
Broussalian’s failure to assert his argument concerning equitable
tolling in the trial court in his section 473 motion, as well as his
failure to raise it in his opening brief with legal analysis and
17
citation to authority, forfeited the issue. (See, e.g., Johnson v.
Greenelsh (2009) 47 Cal.4th 598, 603.)
3. Broussalian Is Not Entitled to Mandatory Relief
Section 473, subdivision (b), provides for mandatory relief
from a default judgment or dismissal caused by an attorney’s
mistake, inadvertence, surprise or neglect when a timely
application for relief after entry of judgment is accompanied by
an attorney’s sworn affidavit attesting to his or fault.
(See Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027,
1033 [under section 473, subdivision (b), “[r]elief is mandatory
when a complying affidavit is filed, even if the attorney’s neglect
was inexcusable”].) As discussed, in the trial court Broussalian
did not dispute the Arzoumanians’ argument mandatory relief
was not available under the circumstances of this case.
Nonetheless, Broussalian contends on appeal the trial court erred
in denying his motion to vacate under the mandatory provision of
section 473, subdivision (b).
Even if we did not find forfeiture, Broussalian’s reliance on
the mandatory provision in section 473, subdivision (b), fails. In
the opening pages of his motion to vacate, Broussalian correctly
recognized, “Relief is mandatory only from those dismissals
which are the ‘procedural equivalent of a default.’” (See Younessi
v. Woolf (2016) 244 Cal.App.4th 1137, 1148 [“the mandatory
attorney-fault provision ‘may be reconciled with the discretionary
dismissal statutes . . . if limited to those dismissals which are the
procedural equivalent of defaults—i.e., those which occur because
the plaintiff’s attorney has failed to oppose a dismissal motion’”];
English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th
130, 145 [“we construe the word ‘dismissal’ as having a limited
meaning similar to the term ‘default judgment’”]; Leader v.
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Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620
[“when the Legislature incorporated dismissals into section 473,
subdivision (b) 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’”; the
purpose of the amendment “‘was simply “to put plaintiffs whose
cases are dismissed for failing to respond to a dismissal motion
on the same footing with defendants who are defaulted for failing
to respond to an action”’”]; see also The Urban Wildlands Group,
Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 998.)
Far from being deprived of his day in court, Broussalian
responded on three separate occasions to demurrers arguing his
complaint against the Arzoumanians was untimely. And the
order of dismissal he challenged in his motion to vacate was not
based on his lawyer’s failure to respond, but on her candid
response to the court’s inquiry whether additional facts could be
alleged as to Broussalian’s legal incapacity that would justify
permitting Broussalian to file a third amended complaint. If
there were to be any relief under section 473, subdivision (b), for
the lawyer’s purportedly mistaken answer to that question, it had
to be as a matter of discretion, not a matter of right.
DISPOSITION
The order denying Broussalian’s motion to vacate dismissal
is affirmed. The Arzoumanians are to recover their costs on
appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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