Mangine v. Ball CA2/7

Filed 11/4/15 Mangine v. Ball 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
MARIE MANGINE, B257377
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC468719)
v.
DON BALL et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle
R. Rosenblatt, Judge. Reversed with directions.
Marie Mangine, in pro. per., for Plaintiff and Appellant.
Craig Mordoh for Defendants and Respondents.
_________________________
INTRODUCTION
Marie Mangine filed a first amended complaint against her landlords for failing to
maintain her rental unit in compliance with applicable building, housing and health codes
and for harassment, both in violation of the West Hollywood Municipal Code (WHMC).1
The trial court sustained the landlords’ demurrer without leave to amend as to Mangine’s
cause of action for failure to maintain her rental unit. Her harassment claim proceeded to
trial and the court found for the landlords.
Mangine appeals from the judgment arguing the trial court erred when it
(1) sustained the landlords’ demurrer to her cause of action for failure to maintain her
rental unit; (2) granted the landlords’ two motions for mandatory relief from default
based on attorney neglect (Code Civ. Proc., § 473, subd. (b)); (3) failed to make a
reasonable compensatory award for legal fees and costs when it granted one of the
motions for relief from default; and (4) denied her motion for leave to file a second
amended complaint.
We agree the trial court erred in sustaining the demurrer without leave to amend
and reverse with directions to enter an order overruling the demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
The central issue in this appeal is the court’s order sustaining the demurrer without
leave to amend. Therefore, we set forth the relevant allegations of the operative
complaint and assume the truth of all properly pleaded facts and reasonable inferences
drawn from those facts as we are required to do. (Hambrick v. Healthcare Partners
Medical Group, Inc. (2015) 238 Cal.App.4th 124, 133, fn. 5.)
1 All undesignated section references are to the West Hollywood Municipal Code
until otherwise indicated.
2
Mangine lives in one of 11 units located at 8575-8577½ Holloway Drive in West
Hollywood, and her tenancy is governed by title 17 of the WHMC (Rent Stabilization
Ordinance). (§ 17.04.010.) The property is owned by defendants Don Ball, Ilene Ball,
the Don Ball and Ilene Ball Trust, Steve Binder, Sharon Binder, the Steve Binder and
Sharon Binder Trust and Michael Ball.2 Don Ball managed and leased the property until
March 2011 when his son Michael Ball took over the responsibilities.
In May 2007, when the onsite managers showed Mangine an available unit, they
promised the “brownish/blackish stain on the ceiling in the bathroom shower that
appeared to be the result of water intrusion would be investigated and repaired before
[Mangine] moved in.” Two weeks later, Mangine signed a month-to-month rental
agreement and gave Don Ball her check for $2,615 to cover her first month’s rent, a
security deposit and a cleaning fee. At that time, Don Ball assured Mangine the stain on
the bathroom shower ceiling would be repaired before she moved in. On a final walk
through prior to Mangine’s occupancy, the unit was freshly painted and the stain was no
longer visible, but the defendants had done nothing more than conceal the habitability
issue and, in doing so, deceitfully induced Mangine to enter into the rental agreement.
In September 2007, about three months after Mangine moved into the unit, she
noticed the stain reappearing on the bathroom ceiling. She spoke with the onsite
managers about the stain as well as unsanitary conditions in the hallways. They said the
stain was “just surface mold” that could be repaired by cleaning and made it clear they
did not get paid to maintain hallways in a clean and sanitary manner.
From September 2007 through October 2010, Mangine had conversations with
Don Ball about the habitability and maintenance issues at the property. Don Ball’s
2 According to the first amended complaint, Don Ball acted as the trustee for both
the Don Ball and Ilene Ball Trust and the Steve Binder and Sharon Binder Trust. (It
appears the correct spelling of the latter defendants’ last name is “Binder” and not
“Bender” as identified in Mangine’s pleadings.) Don Ball died during proceedings in the
trial court, and Ilene Ball was substituted in his place. (Code Civ. Proc., § 377.41
[continuation of pending action against decedent].)
3
position was always that the building was “too old to perform proper/regular maintenance
and repairs.” Throughout this time, despite defendants’ failure to remedy the defects at
the property, Mangine diligently and consistently paid her rent on time.
In October 2010, Mangine and Don Ball came to an agreement concerning the
long-term unabated habitability issues involving Mangine’s unit; Ball agreed no rent
would be due until the habitability issues were abated. When Mangine told Ball she
would send him a letter memorializing the conversation, he became upset because “he
said it was insulting that [she] did not trust him to honor his agreement and it just was not
the way he did business.”
About six months later, on March 24, 2011, Michael Ball called Mangine,
informing her Don Ball had relinquished oversight of the building and all further
communications concerning the property should be directed to him or the onsite
managers. He also called to ask why Don Ball’s bookkeeper had no record of her rent
payments after September 2010. She told Michael Ball of her agreement with Don Ball
that no rent would be due until all the habitability issues were abated. She and Michael
Ball discussed these issues at length, and at no time did he take exception to the existence
of the agreement she had with Don Ball.
The next day, however, Michael Ball wrote a letter characterizing his conversation
with Mangine in a very different manner. He demanded retroactive rent payments by
April 15, 2011 and timely rental payments thereafter. Michael Ball did not address any
plan to abate the habitability issues they had discussed during the conversation.
On April 21, Mangine received a three-day notice to pay rent or quit from Michael
Ball. The following week, Don Ball filed an unlawful detainer action against Mangine,
seeking past due rent at a daily rate of $43.35 per day, plus damages and attorney’s fees
and forfeiture of the rental agreement.
On August 9, after a two-day bench trial in the unlawful detainer (UD) action, the
court found there was an agreement between Don Ball and Mangine providing the
landlord would demand no rent until the habitability issues were abated. The court found
Don Ball had not sought rent from Mangine during an extended period of time before
4
filing the UD action, and Michael Ball’s correspondence substantially acknowledged the
existence of the agreement between Mangine and Don Ball. Therefore, with respect to
the time period at issue in the UD action, the court concluded the prior agreement applied
to the time before April 1, 2011, such that Mangine owed no rent for this time.3
According to the judgment, Don Ball’s testimony was “totally lacking in credibility” and
the court credited Mangine’s testimony “fully.”4
The court in the UD action also found Mangine had presented credible evidence of
substantial defects at the property (known to Don Ball and not caused by Mangine),
including eight items referenced in a Los Angeles County Housing Department “Official
Inspection Report” dated April 26, 2011. According to this report, the percentage of
defect identified for “[m]old (‘microbial growth’) in the bathroom” was 20 percent, and
the percentage of defect for “[d]amaged/[d]irty/unsanitary hallways [and] common areas”
was 30 percent. Because Don Ball had substantially breached the implied warranty of
habitability, Mangine’s rent of $1,300.64 per month was reduced by 50 percent for the
months in question to the reasonable rental value of $650.32 per month for the period of
April 1, 2011 through July 31, 2011 (for a total of $2,601.28) plus rent from August 1
through the date of the August 9 judgment at a rate of $21.68 per day (another $195.12).
Based on the foregoing facts, Mangine alleged in her operative complaint that
defendants had failed to maintain her rental unit in accordance with all applicable
building, housing and health codes, in violation of section 17.56.010(a)(3).5 Despite
knowledge of these severe defects, defendants demanded and accepted rent payments the
3 It is not clear from the record the date from which Don Ball sought to recover
unpaid rent.
4 Mangine asserted in her operative complaint that the judgment constituted
evidence in support of her claim defendants had failed to maintain her apartment in the
manner required by the Rent Stabilization Ordinance.
5 “All rental units, at a minimum, shall be: . . . [¶] . . . [¶] . . . Maintained in
accordance with all applicable building, housing and health codes.” (§ 17.56.010(a)(3).)
5
entire time Mangine was forced to live in these conditions from June 2007 to the
present.6
Mangine alleged section 17.68.010(d) provides that any violation of the Rent
Stabilization Ordinance shall render the violator liable to the party who incurred damages
as a result of the violation in “a civil action” for the actual damages suffered by the
aggrieved party as well as punitive damages. Further, Mangine noted the retention of
amounts received in violation of the Rent Stabilization Ordinance shall be deemed a
continuing violation until such amounts are refunded to the affected persons. As such,
she alleged, she was entitled to a refund of the portion of the rent attributable to the
substandard conditions of the rental property from June 2007 to October 2011—the entire
time defendants did not maintain the property in the manner required by section
17.56.010—plus punitive damages and attorney’s fees, pursuant to section 17.68.010(d).
Defendants demurred, arguing the trial court had sustained their demurrer to
Mangine’s original complaint on the ground “an adjustment in rent under the WHMC
must be applied for through the Rent Stabilization [Department]. Here, there is no
allegation that [Mangine] ever did so.” Noting the first cause of action of Mangine’s first
amended complaint was substantially the same as in her original complaint, the trial court
then sustained the demurrer without leave to amend.7
Mangine appeals from the judgment subsequently entered in favor of the
defendants.
6 It appears Mangine no longer lives at the property; after she filed her original
complaint on September 1, 2011, the defendants returned her October rent payment,
indicating they would no longer accept payment from her because she had filed this
action. On October 28, Don Ball filed a second UD action against Mangine.
7 The trial court overruled defendants’ demurrer to a new cause of action for
harassment, and the parties proceeded to trial on this claim alone. (Defendants’ demurrer
to a third cause of action for violation of Business and Professions Code section 17200
(mislabeled as the fifth cause of action) was also sustained without leave to amend.)
Only the first cause of action is at issue in this appeal.
6
DISCUSSION
A. Mangine Stated a Cause of Action under the Rent Stabilization Ordinance
1. Standard of Review
A demurrer tests the sufficiency of a complaint as a matter of law. Therefore, the
standard of review on appeal is de novo. (Berg & Berg Enterprises, LLC v. Boyle (2009)
178 Cal.App.4th 1020, 1034.) On appeal from a judgment after a demurrer is sustained
without leave to amend, we assume the truth of all facts properly pleaded as well as facts
which may be judicially noticed, but we do not assume the truth of contentions,
deductions or conclusions of fact or law. (Lyles v. Sangadeo-Patel (2014) 225
Cal.App.4th 759, 764; Black v. Department of Mental Health (2000) 83 Cal.App.4th 739,
745.) Regardless of the label attached to a particular claim, we must examine the
complaint’s factual allegations to determine whether they state a cause of action on any
available legal theory, and if the facts alleged demonstrate entitlement to relief under any
possible legal theory, reversal is required. (Black, supra, at p. 745.)
2. Sections 17.56.010(a)(3) and 17.68.010
The requirements imposed on a landlord by section 17.56.010(a)(3) of the Rent
Stabilization Ordinance are straightforward: “All rental units, at a minimum, shall
be: . . . [¶] . . . [¶] . . . Maintained in accordance with all applicable building, housing and
health codes.” (§ 17.56.010(a)(3).)
Remedies for violations of the Rent Stabilization Ordinance are contained in
section 17.68.010. Subdivision (d) of that section provides: “Any person . . . may
enforce the provisions of this title by means of a civil action. Any person . . . violating
any of the provisions of this title is liable for each and every such offense for actual
damages suffered by the aggrieved party, or for statutory damages in the sum of one
thousand dollars . . . whichever is greater, and for punitive damages. The prevailing party
may also recover such attorneys’ fees and costs as may be determined by the court.”
7
(Italics added.) Thus, a tenant damaged by any violation of the Rent Stabilization
Ordinance may file a civil action to recover her damages.
Mangine alleged facts to state a claim under this section. She alleged in her
operative complaint that she rented a unit in the City of West Hollywood in June 2007
that was subject to the Rent Stabilization Ordinance. From 2007 through October 2011,
there were defects and habitability issues with the unit. Mangine’s unit had mold. The
common areas of the building were dirty and unsanitary. In the UD action, the court
found substantial defects in the property and noted a county housing department report
dated April 26, 2011 revealing eight substantial defects with the unit including mold and
unsanitary hallways. Mangine alleged that her unit had not been maintained in a
habitable condition in violation of section 17.56.010(a)(3). She also alleged she incurred
damages because she agreed to pay an amount of rent based on her belief she was renting
a habitable unit and she did not obtain such a unit. Accordingly, Mangine alleged she
was entitled “to a refund of the portion of the rent attributable to the substandard
conditions of the rental property . . . .”
Mangine was not required to allege anything further. Her allegations established a
violation of the Rent Stabilization Ordinance, damages and an entitlement to bring a civil
action.
3. Mangine Did Not Forfeit The Issue
Defendants assert Mangine has forfeited any right to appeal the court’s ruling on
the demurrer because she has failed to provide an adequate record on appeal. Defendants
claim Mangine’s failure to include defendants’ demurrer to Mangine’s initial complaint,
her opposition to it as well as the court’s prior ruling provides us with an inadequate
record for meaningful review. We disagree.
Defendants are correct that an appellant has the burden of providing us with an
adequate record; if the record is inadequate for meaningful review, the trial court’s
decision should be affirmed. (Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 187.) Here, however, the record includes Mangine’s original
8
complaint, and as noted by the court, the first cause of action in the amended complaint
was “substantially the same as the original complaint.” In its ruling on the demurrer to
the first amended complaint, “The Court found that [WHMC] section 17.56.010(d)
provides for enforcement by first applying for an adjustment in rent under the [WHMC]
through the Rent Stabilization [Department]. [Mangine] is required to allege she did so,
as was indicated at the time of sustention of the demurrer to the original complaint.
[Mangine] has once again failed to allege that she ever did so. As [Mangine] cannot so
allege, the demurrer to the first cause of action is sustained without leave to amend.”
(Italics added.)
The record in this case leaves no doubt defendants’ demurrer to Mangine’s initial
complaint was premised on the ground Mangine was required to apply to the Rent
Stabilization Department for a rent adjustment but failed to allege she had done so, and
the trial court sustained both demurrers on this ground; there is no suggestion there was
any other ground to support the trial court’s decision. (See Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“[w]hen the record clearly
demonstrates what the trial court did, we will not presume it did something different”].)
The record is adequate for meaningful review (Foust v. San Jose Construction Co., Inc.,
supra, 198 Cal.App.4th at p. 187), and we address the issue on its merits.
4. Mangine was not required to allege she had applied to the Rent
Stabilization Department to state her cause of action.
On the merits, defendants contend “the remedy” for the landlord’s failure to
provide necessary maintenance is for the tenant to “make application to the Rent
Stabilization Department pursuant to [s]ection 17.44.040” for a rent adjustment.
(§ 17.46.010(d).) They argue because Mangine never alleged she had made such an
application, the trial court properly sustained the demurrer. Defendants assert “[t]he
power to adjust the rent pursuant to the [WHMC] resides within the power of the Rent
Stabilization [Department] and its Hearing Examiners, not with the courts.”
9
Defendants rely on section 17.56.010(d) to support their position that Mangine’s
sole remedy was a rent adjustment. Section 17.56.010(d) provides: “The requirements of
subsections (a)(1) [minimum standards painting], (a)(2) [minimum standards window
coverings and carpet], (a)(4) [minimum standards vinyl flooring] and (a)(5) [minimum
standards wallpaper] and subsection (c) [minimum standards common area window
coverings, carpet and painting] of this section must be performed upon the written request
of the tenant(s) to the landlord. The landlord is responsible for all acts reasonably
necessary to the performance of maintenance required by this section . . . . The tenant(s)
may make application to the Rent Stabilization Department pursuant to [s]ection
17.44.040, in the event a landlord fails or refuses to comply with the written request.”
Mangine, however, is not seeking a rent adjustment. The prayer of Mangine’s
complaint makes that clear. She is seeking actual and punitive damages as well as
attorney’s fees pursuant to section 17.68.010(d). Based on any violation of the Rent
Stabilization Ordinance, section 17.68.010(d) allows Mangine to seek “actual damages,”
“or . . . statutory damages in the sum of one thousand dollars ($1,000.00), whichever is
greater, and . . . punitive damages.”
Defendants’ argument suffers from two additional flaws. First, Mangine is not
attempting to enforce section 17.56.010(a)(1), (a)(2), (a)(4) or (a)(5). Mangine expressly
alleged a violation of the Rent Stabilization Ordinance under section 17.56.010(a)(3),
maintenance of a unit “in accordance with all applicable building, housing and health
codes.” Section 17.56.010(d) is inapplicable to a tenant’s claim under subdivision (a)(3)
of section 17.56.010; it specifically excludes section 17.56.010(a)(3).
Second, even assuming section 17.56.010(d) did apply to Mangine’s claim, the
section permits, but does not require, a tenant to make an application for a rent
adjustment. The section is permissive and provides that a tenant “may make application
to the Rent Stabilization Department pursuant to [s]ection 17.44.040, in the event a
landlord fails or refuses to comply with the [tenant’s] written request [to perform required
maintenance].” (§ 17.56.010(d).) Moreover, section 17.44.040, which governs the
procedure for a tenant-requested rent adjustment, states: “The remedies here are
10
cumulative and do not preclude any other remedy that may be available under any
provision of law.” (§ 17.44.040(1)(c).)
Contrary to defendants’ argument, section 17.68.010—entitled “Remedies –
Violations ”—provides a tenant with multiple avenues for relief for violations of the Rent
Stabilization Ordinance. The section specifies: “The remedies provided herein are
cumulative and shall not be deemed to preclude any other remedy which may be
available under any provision of law.” (§ 17.68.010(l), italics added; see also Sego v.
Santa Monica Rent Control Bd. (1997) 57 Cal.App.4th 250, 259 [although one provision
of the Santa Monica Rent Control Charter Amendment “provides for a tenant initiated
administrative complaint,” another “allows the tenant to bring a civil action for damages
plus a penalty of treble the amount of excess rent, with no requirement that the tenant
exhaust administrative remedies”].)
As Mangine stated a cause of action in her first amended complaint under sections
17.56.010(a)(3) and 17.68.010(d) and her remedies were not limited to requesting a rent
adjustment through the Rent Stabilization Department, the court erred in sustaining
defendants’ demurrer.
B. The Trial Court Did Not Err in Granting the Motions for Relief from Default8
1. Governing Law and Standard of Review
Section 473, subdivision (b), authorizes a court “upon any terms as may be just” to
“relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against
[the party] through his or her mistake, inadvertence, surprise, or excusable neglect.” The
section provides for both discretionary and mandatory relief.9 Under the discretionary
8 Statutory references in the remaining discussion are to the Code of Civil
Procedure.
9 Section 473, subdivision (b), provides: “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
11
relief provision, a court may allow relief based upon the court’s evaluation of the nature
of the mistake, inadvertence, surprise or excusable neglect alleged and the justification
proffered for the conduct that occurred. In contrast, under the mandatory relief provision,
upon a showing by an attorney declaration of “mistake, inadvertence, surprise, or
neglect,” a court “shall” vacate any resulting default, default judgment or dismissal
entered. (§ 473, subd. (b); Leader v. Health Industries of America, Inc. (2001) 89
Cal.App.4th 603, 612 [“if the prerequisites for the application of the mandatory provision
of [§] 473, [subd.] (b) exist, the trial court does not have discretion to refuse relief”].)
Where the applicability of the mandatory relief provision of section 473,
subdivision (b), does not turn on disputed facts and presents a pure question of law, it is
subject to our de novo review. (Leader v. Health Industries of America, Inc., supra, 89
Cal.App.4th at p. 612.) “Where the facts are in dispute as to whether or not the
prerequisites of the mandatory relief provision of [the section] have been met, we review
the record to determine whether substantial evidence supports the trial court’s findings.
[Citation.]” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.)
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. . . .”
12
2. The Binder Defendants’ Motion for Relief from Default
Mangine filed a request for entry of default against Steve Binder and Sharon
Binder on November 3, 2011. The court entered their defaults as requested on that date.
On January 10, 2012, the Binder defendants filed a motion to set aside the default,
supported by the declaration of their attorney, Craig Mordoh. According to the attorney’s
sworn declaration, after receiving Mangine’s complaint from Michael Ball in early
October 2011, Mordoh planned to file a demurrer. Due to his own negligence, he
miscalendared the filing deadline as to the Binder defendants who had been served before
the other defendants. Mordoh declared: “The failure to file the demurrer timely was
entirely mine and my clients should not be denied their day in court . . . .”
Mangine opposed the motion. Mangine challenged Mordoh’s credibility and
argued his actions were an intentional tactical decision.
On February 2, 2012, the trial court granted the Binder defendants’ motion to set
aside the default. The court found Mordoh’s declaration and the moving papers
described “a straightforward failure to properly calendar the due date for demurrer”
which “constitutes an adequate showing of attorney neglect[] resulting in the entry of
default” while the opposition presented “no basis to challenge the honesty of [Mordoh’s]
declaration . . . .”
3. Mangine has failed to demonstrate error in the trial court’s order
granting the Binder defendants’ motion for relief from default.
Mangine argues the trial court erred in granting the Binder defendants’ motion for
relief for two reasons: (1) The trial court lacked jurisdiction or acted in excess of its
jurisdiction to hear the motion because the Binder defendants failed to comply with the
statute’s mandatory requirement that a proposed pleading be filed with the motion; and
(2) the Binders failed to present sufficient admissible evidence the default was actually
caused by attorney error. We disagree with both arguments.
First, section 473, subdivision (b), does require that a request for relief “shall be
accompanied by a copy of the answer or other pleading proposed to be filed therein . . . .”
13
However, the “‘objectives of the “accompanied by” requirement, i.e., a screening
determination that the relief is not sought simply to delay the proceedings, are satisfied
by the filing of a proposed [pleading] at any time before the hearing.’ [Citation.]” (Hu v.
Fang, supra, 104 Cal.App.4th at p. 65; County of Stanislaus v. Johnson (1996) 43
Cal.App.4th 832, 838 [“[a] party substantially complies with the ‘accompanied by’
requirement by filing the proposed [responsive pleading] sufficiently in advance of the
hearing to permit the other party to prepare for the hearing”].)
In their motion, the Binder defendants requested the court “allow them to respond
to the Complaint by filing the same demurrer filed by the other Defendants on November
23, 2011.” Thus, the Binder defendants satisfied the “‘accompanied by’ requirement” by
referencing the specific pleading that they intended to file. (Hu v. Fang, supra, 104
Cal.App.4th at p. 65.)
With regard to Mangine’s second argument, she is correct that the trial court may
deny relief if it finds “the default . . . was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.” (§ 473, subd. (b), italics added; Milton v. Perceptual
Development Corp. (1997) 53 Cal.App.4th 861, 866-867 [“The clause in [§] 473,
[subd.] (b) which mandates the court to grant relief unless it finds that the default was not
in fact caused by lawyer error is not only a credibility testing device. It is also ‘a
causation testing device.’”]) Here, however, the trial court found Mordoh’s sworn
declaration credible. The court credited the evidence indicating Mordoh was representing
the Binder defendants at the time the demurrer should have been filed, but he missed the
filing deadline and bore sole responsibility for missing the deadline. Consequently, the
trial court’s causation and credibility determinations are supported by substantial
evidence. (Milton, supra, at p. 867 [“A trial court’s finding on the causation issue will be
affirmed so long as it is supported by substantial evidence. [Citation.] If the evidence
gives rise to conflicting inferences, one of which supports the trial court’s findings, we
must affirm. [Citation.]”]; Carmel, Ltd. v. Tavoussi, supra, 175 Cal.App.4th at p. 399.)
14
4. Defendants’ Motion for Relief from Default
Mangine filed her first amended complaint on February 21, 2012. On March 29,
she submitted a request for entry of default as to all defendants. While the court clerk
initially rejected the request, the court ultimately entered defaults against defendants as of
March 29.10
On April 2, defendants filed a demurrer to Mangine’s first amended complaint.
The court set the demurrer for hearing on June 1.
On May 18, Mangine filed opposition to the demurrer. She argued the demurrer
should be stricken because it had been filed four days after entry of default.
On May 24, defendants filed a motion to set aside default. (§ 473, subd. (b).)
Defendants’ counsel, Mordoh, filed a sworn declaration with the motion explaining the
failure to timely file the demurrer was his fault.
According to Mordoh’s declaration, he had been negligent in failing to file the
demurrer by March 24 because he had been engaged in discussions with Mangine’s
counsel in the UD action, John Leonard, attempting to settle both the UD matter and the
civil action. Mordoh stated that when settlement discussions broke down, he allowed his
preparations for trial in the UD action to distract him from filing the demurrer in the civil
action until April 2. Mordoh revealed that prior to Mangine requesting the entry of
default, she did not contact him to indicate the responsive pleading should be filed or she
intended to take defendants’ default. After Mordoh learned default had been entered, he
asked Mangine to agree to set it aside and “offered to compensate her for any time lost by
this request,” but Mangine refused to consider the matter.
10 The details are not relevant to the issues raised in this appeal, but it appears that
the court clerk’s perception that there were deficiencies in Mangine’s request for entry of
default delayed entry of default and apparently permitted defendants’ demurrer to be filed
and placed on the trial court’s calendar.
15
Mangine filed opposition to the motion through Leonard. Again Mangine
challenged Mordoh’s credibility.11
Leonard appeared on behalf of Mangine at the hearing. The court granted
defendants’ motion, finding an adequate showing of attorney neglect resulting in entry of
default. The court also declined Mangine’s request for an award of sanctions.
Mangine contends the trial court erred in granting defendants’ motion to set aside
default. We disagree.
As before, Mangine argues the court lacked jurisdiction to grant the motion
because it was not accompanied by a proposed pleading as required by statute. Again,
the demurrer was in the court files and the court simply ordered it recalendared. Here,
the objectives of the statute were satisfied. Mangine has failed to demonstrate error
because defendants satisfied the statute’s “‘accompanied by’ requirement.” (Hu v. Fang,
supra, 104 Cal.App.4th at p. 65.)
Next, Mangine argues defendant Don Ball, as an individual and as a trustee, “lost
the capacity and standing to seek relief” from default. She contends the court no longer
had jurisdiction to hear a motion on his behalf as a result of his death on March 8, 2012.
Her argument is unpersuasive.
Don Ball died on March 8 before his answer was due on or about March 24.
Generally, “judgment cannot be rendered for or against a decedent” until the decedent’s
personal representative is substituted into the action. (Sacks v. FSR Brokerage, Inc.
(1992) 7 Cal.App.4th 950, 957.) This rule is applied “to prevent prejudice to the parties
because of lack of notice, lack of proper representation, or some other disadvantage.”
11 Three days before the date set for hearing on the motion to set aside default,
Leonard (Mangine’s attorney in the UD action—and the attorney who signed the
declaration of mailing in support of Mangine’s request for entry of default) filed a
supplemental declaration, stating “the Defendant [sic, Mangine] ha[d] incurred [or
would] incur reasonable attorney fees of $2,625.00” based on a rate of $250 per hour for
preparation of opposition and appearance at defendants’ ex parte application (3 hours and
2.5 hours, respectively) and preparation of opposition and appearance at defendants’
motion to vacate default (2 hours and 3 hours, respectively).
16
(Ibid.) Here, the court’s entry of Don Ball’s default on March 29 after his death was
subject to set aside because the default was prejudicial to his estate and taken before his
personal representative substituted into the action. (See id. at pp. 957-959; see also
§ 377.41.)12
Mangine alternatively argues that if the court properly granted the motion, the
court erred in declining to award “sanctions”—referring to her attorney’s fees as
documented in Leonard’s supplemental declaration. She contends the fee award is
mandatory.
In response, defendants argue, without citation to the record, the supplemental
declaration from Leonard was filed late without the court’s permission; Leonard was not
Mangine’s attorney of record as she was self-represented; there was no evidence before
the court as to the existence of any “reasonable compensatory legal fees and costs”; and
the court implicitly found the requested fees were not reasonable. (§ 473, subd. (b).)
We agree with the court that Mangine is not entitled to “reasonable compensatory
legal fees and costs” under these circumstances. (§ 473, subd. (b).) Mangine is not
entitled to an award for her unsuccessful opposition to the motion to set aside the default.
The statute requires an award of “compensatory legal fees and costs” to reimburse a party
for the unnecessary expense incurred in obtaining a default which the court later sets
aside because of attorney fault. (See Matera v. McLeod (2006) 145 Cal.App.4th 44, 68
[recovery of fees “necessitated by [attorney’s] neglect”].) As Mangine was not
represented by counsel when she obtained the default and there was no evidence of any
costs she incurred in obtaining the default, she is not entitled to any award under
section 473, subdivision (b).
12 Ilene Ball substituted into the action for Don Ball prior to the hearing on
defendants’ demurrer to Mangine’s first amended complaint.
17
C. Mangine has failed to demonstrate error in the trial court’s denial of her motion
for leave to amend her complaint.
Motions for leave to amend are directed to the sound discretion of the trial court,
and the court’s discretion will usually be exercised liberally to permit amendment of the
pleadings. (§ 473, subd. (a)(1) [“[t]he court may . . . in its discretion, after notice to the
adverse party, allow, upon any terms as may be just, an amendment to any pleading”];
Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Notwithstanding
the liberal policy in favor of amendments, the trial court’s exercise of its discretion will
not be disturbed on appeal unless it clearly has been abused. (Foxborough v. Van Atta
(1994) 26 Cal.App.4th 217, 230.)
As we noted, an appellant bears the burden of providing an adequate record on an
issue; “a judgment or order of the trial court is presumed correct and prejudicial error
must be affirmatively shown.” (Foust v. San Jose Construction Co., Inc., supra, 198
Cal.App.4th at p. 187.) “‘In the absence of a contrary showing in the record, all
presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f
any matters could have been presented to the court below which would have authorized
the order complained of, it will be presumed that such matters were presented.”’
[Citation.] This general principle of appellate practice is an aspect of the constitutional
doctrine of reversible error. [Citation.] ‘“A necessary corollary to this rule is that if the
record is inadequate for meaningful review, the appellant defaults and the decision of the
trial court should be affirmed.”’ [Citation.]” (Ibid.)
Prior to trial on her harassment cause of action, on September 19, 2013, Mangine
filed a motion to enforce a purported settlement agreement between her and defendants
or, in the alternative, for leave to file an amended complaint, adding a cause of action for
breach of settlement agreement.13 On October 9, Mangine filed a notice indicating she
13
According to the civil case summary, Mangine filed a notice of settlement on
June 20, 2013, but this document is not included in the record on appeal. It appears trial
was originally scheduled for June 24, 2013.
18
had received no opposition to her motion. After issuing a tentative ruling and hearing
argument, the trial court denied Mangine’s motion. Mangine did not include the court’s
tentative ruling in the record on appeal.14
Contrary to Mangine’s representation, the record indicates defendants filed
opposition to Mangine’s motion, yet she failed to include that opposition in the record on
appeal and the hearing was unreported.15 Because the trial court’s order is presumed
correct and Mangine has failed to present an adequate record for meaningful review, the
order denying leave to amend must be affirmed. (Foust v. San Jose Construction Co.,
Inc., supra, 198 Cal.App.4th at p. 187.)
We express no opinion as to whether Mangine should be permitted to amend her
complaint to allege breach of contract and breach of the covenant of good faith and fair
dealing on remand.
14 Mangine revealed during oral argument that she could not secure the tentative
ruling which she indicated was in her favor.
15 The civil case summary demonstrates defendants filed an opposition to the motion
on October 9, the same date Mangine filed her notice of no opposition. Defendants were
not required to augment the record on appeal with their opposition and they did not do so.
Therefore, we cannot determine on this record what arguments they made in opposition
to the motion. On appeal, defendants argue the amendment was sought “on the eve of
trial” and was based on events unrelated to her original claims.
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DISPOSITION
The judgment is reversed. The trial court is directed to vacate the order sustaining
the demurrer to the first cause of action of the first amended complaint without leave to
amend and to enter an order overruling the demurrer to the first cause of action of
Mangine’s first amended complaint. Mangine is to recover her costs on appeal.
BECKLOFF, J.*
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
20