Boydstun v. Abbott

Filed 4/21/06 Boydstun v. Abbott CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.

The Farrace Law Firm and Robert F. Farrace for Plaintiffs and Appellants.

McCormick, Barstow, Sheppard, Wayte & Carruth, Lawrence E. Wayte, Jerry D. Casheros and Anil Pai for Defendant and Respondent Michael Abbott.

Bishop, Barry, Howe, Haney & Ryder and Carol L. Healey for Defendants and Respondents Michael Rein and Rein & Rein.

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Appellants Bobby Ray Boydstun, Sr., Hazel Boydstun, and Bobby Ray's Enterprises, Inc. (collectively appellants) seek relief from a judgment of dismissal. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Appellants filed suit against respondents on June 12, 2000. An amended complaint was filed on April 26, 2002. A case management conference was scheduled for August 30, 2002. When no one appeared, the trial court set the matter for a dismissal hearing.

When no one appeared at the October 25, 2002, dismissal hearing, a minute order dismissing the action without prejudice was entered on the docket. No notice was given to the parties of the entry of the minute order and no judgment was entered.

In November 2002, respondent Michael Abbott, individually and doing business as Law Offices of Michael Abbott (collectively Abbott) renoticed the depositions of appellants, setting them for December 2002. By letter dated April 1, 2003, respondents Michael Rein and Rein & Rein (collectively Rein) sought to have appellants voluntarily dismiss the action as against them. On April 11, 2003, appellants responded with a settlement offer to Rein. In May 2003, respondent Abbott served a notice of taking deposition and a request for production of documents. Approximately one week later, respondent Abbott served a notice of cancellation of the deposition and document request.

On November 9, 2004, appellants filed their motion to set aside the dismissal based upon the provisions of Code of Civil Procedure section 473, subdivision (b).^[1] The motion was accompanied by the declaration of Robert F. Farrace, appellants' counsel. In his declaration, Farrace set forth the numerous personal and professional problems he had suffered between January 2000 and September 2004. Farrace claimed the dismissal of the case occurred because of his mistake, inadvertence, or neglect and accepted full responsibility for events that led to the minute order dismissing the matter. Respondents Abbott and Rein opposed the motion to set aside the dismissal.

In its order on the motion to set aside dismissal, the trial court found that the dismissal entered on the docket did not constitute a judgment of dismissal within the meaning of section 581, subdivision (d). The trial court further found that taking into consideration the personal tragedy suffered by Farrace and his lack of notice of the clerk's dismissal, Farrace still had failed diligently to prosecute the action.

By order dated December 17, 2004, the motion was denied. On January 20, 2005, a judgment of dismissal was entered. Appellants appeal from the judgment of dismissal.

DISCUSSION

Appellants contend that section 473, subdivision (b) provides for mandatory relief from dismissal upon an attorney's affidavit of fault, if the request for relief is filed within six months of entry of judgment. Appellants' motion to set aside the dismissal of October 25, 2002, specifically requested mandatory relief pursuant to section 473, subdivision (b). They maintain that their motion was timely because it was filed before the judgment of dismissal on January 20, 2005.

Respondent Rein argues that appellants' motion to set aside was not timely because it was filed more than six months after the entry on the docket of the dismissal. Respondent Abbott maintains the trial court did not base its ruling on section 473 but instead exercised its inherent authority to dismiss; therefore, an analysis of section 473 is irrelevant to the issues on appeal.

I. Section 473, Subdivision (b) Does Not Apply

An appellate court reviews the judgment, not the reasoning of the trial court. A decision that is correct under applicable law will not be disturbed merely because it has been rendered for an incorrect reason. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.) Therefore, regardless of whether the trial court based its decision on section 473, subdivision (b), we address that code section in order to determine if applicable law entitled appellants to relief.

Section 473, subdivision (b) provides in relevant part:

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