Hayes v. Patton

Filed 10/30/07 Hayes v. Patton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Donald G. Umhofer^[1]and Shahla Sabet, Judges. Affirmed.

Law Offices of Mark A. Massey and Mark A. Massey for Defendant and Appellant.

Robert J. Spitz for Plaintiff and Respondent.

Michael Patton (Patton) appeals from an order denying his motion to set aside the default which was entered after his answer to complaint was stricken for discovery abuses. He argues that the trial court abused its discretion in imposing terminating sanctions for what he considers acts of abandonment by legal representatives, as well as the original monetary sanctions imposed as discovery sanctions. We affirm the judgment.

1. Background

Preliminarily, we note the appellants appendix (incorrectly titled appellants index), as originally constituted, did not provide a complete record. Under such circumstances, we would ordinarily decide the case based on what was presented, and affirm the judgment on the ground the appellant did not provide an adequate record. However, we are concerned this would simply postpone the issues. Therefore, we have augmented the record on our own motion in order to conduct a meaningful review.

2. Factual History

In March 1995, plaintiff Thomas Hayes (Hayes) inherited a life estate relating to real property located in Hollywood Hills. The remainder interest in the property was inherited by Jack Futell. In December 1999, Patton purchased both interests in the property. He paid cash to Futell for the remainder interest, and entered into an agreement with Hayes for the life estate, which agreement is the basis of the lawsuit. According to the complaint, the agreement provided that, in return for the life estate, Patton would provide to Hayes a rental house for 20 years at the rate of $400 per month, and would agree to maintain the rental property at his own expense. Hayes took up residence in the rental. The life estate was alleged to be worth $150,000.

However, at some point, Hayes was informed that Patton had sold the property to a third party who ordered Hayes to vacate the premises that day. Hayes went to Pattons chiropractic office to inquire about the rental and was informed that Patton was purchasing another rental Hayes could occupy. Patton instructed Hayes to move into a motel in the interim, and to place his belongings in storage; Patton promised to pay the expenses of both the motel and the storage. When Hayes returned to the newly sold rental, he discovered his belongings were already being removed. Patton paid the self-storage fees for several months. However, he stopped paying the fees and refused to provide Hayes with access to Hayess property unless Hayes agreed to waive any claims against Patton. Hayess property was sold in a lien sale. The value of personal property was alleged to be $25,000.

3. Procedural History

Hayes filed a complaint alleging several causes of action, sounding primarily in breach of contract, fraud, forcible detainer, conversion, negligent infliction of emotional distress, constructive trust, breach of fiduciary duty, and equitable and promissory estoppel. Patton, then represented by attorney Joe Leyva, answered the complaint, but failed to timely provide responses to four separate discovery requests subsequently served on him. Hayes made four separate motions to compel discovery, one for each unanswered discovery request, and sought sanctions. No opposition was filed, but a new attorney, Stacey Matranga, appeared at the hearing on the motion to compel. The court granted the motions, compelling responses to the discovery requests, and imposed sanctions in the amount of $1,894.80.

Hayes deemed unacceptable the responses to the various discovery requests, so Hayess counsel demanded additional responses and documentation to the various requests, and ultimately filed a motion for terminating sanctions. At the hearing, which was held on February 6, 2006, the trial court permitted Matranga to argue that responses to discovery had been provided with the information made available, although no opposition to the motion had been filed. No explanation was provided for the failure to pay the monetary sanctions previously imposed. The trial court found that, lacking any opposition explaining that the prior court orders had been followed, and lacking any documentation as to what answers had been submitted or what information had been provided, it could only grant the motion for terminating sanctions. Pattons answer was therefore stricken and his default entered.

A request for entry of default was filed and served. At the default prove-up hearing, the trial court awarded damages as follows: $237,600 for the breach of contract; $35,000 for conversion of personal property; $10,000 for the forcible detainer cause of action; and $25,000 for the negligent infliction of emotional distress. The default judgment in the amount of $307,600 was filed on April 18, 2006. Subsequently Patton substituted another attorney, Richard Knickerbocker, who made a motion to set aside the default judgment on June 6, 2006. Hayes offered Matrangas declaration (Pattons second attorney), in opposition to the motion, to explain her efforts to obtain information from Patton to comply with discovery. The trial court found Matrangas declaration was credible, that Patton was not cooperating, that counsel did what she could with what she was provided, and that her conduct did not constitute abandonment or positive misconduct. The motion was nevertheless denied.

4. Discussion

Patton appeals from the order granting the terminating sanctions which resulted in the order striking his answer and the entry of his default, as well as the order denying his motion to vacate the default. We affirm.

A. THE TRIAL COURT PROPERLY GRANTED THE MOTION FOR

TERMINATING SANCTIONS.

Patton argues the trial court abused its discretion in making the order imposing discovery sanctions, and the subsequent order granting terminating sanctions. In support of this argument, he cites the decision of Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, a case in which terminating sanctions were upheld for discovery abuses. Patton argues that his case is distinguishable from that case, because his transgressions were trivial compared with the discovery abuses committed in Mileikowsky. He also argues that because his attorneys neglected his case and lied to him, he should not have been required to forego his constitutional right to due process, . . . We disagree.

With respect to the order compelling discovery and imposing monetary sanctions, the courts discretion to impose such sanctions is broad, subject to reversal only for manifest abuse of that discretion. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388.) Here, the motion to vacate the default presented Pattons declaration as to his ignorance of the discovery orders and sanctions. However, the trial court concluded that Pattons declaration was less credible than Matrangas. The court determined that Patton was not cooperating with counsel and was not fully engaged in the litigation. These findings show the orders complained of were proper exercises of judicial discretion.

As the reviewing court in Mileikowsky, supra, 128 Cal.App.4th at page 279 observed, a decision to order terminating sanctions should not be made lightly. In that case, the history of discovery abuses included five motions to compel and the evidence demonstrated that less severe sanctions would not produce compliance. (Ibid.) The same is true here: there were four motions to compel which were granted in the initial proceeding to compel further discovery. However, Patton did not pay the monetary sanctions and persisted in providing incomplete or evasive responses to discovery. The trial judge who heard the motion for terminating sanctions was justified in finding that less severe sanctions were ineffective at producing compliance requiring the imposition of terminating sanctions.

The trial court did not abuse its discretion.

B. THE TRIAL COURT PROPERLY DENIED THE MOTION TO VACATE THE

DEFAULT JUDGMENT.

As part of his challenge to the order imposing terminating sanctions, Patton argues the trial court abused its discretion in denying his motion to set aside the default judgment. He argues he should not be made to suffer a default judgment based upon the fact his second attorney, Matranga, did not know what she was doing. He asserts Matranga was willing to perjure herself before the trial court to avoid responsibility for the default, thereby breaching her duty of loyalty. However, Patton focuses his criticism on Matrangas failure to oppose the motion for imposition of terminating sanctions for discovery abuses, which occurred before the default judgment was entered. This does not establish excusable neglect sufficient to warrant relief from the subsequently-entered default judgment.

Ironically, he concedes he has not spent time arguing in this brief that the trial courts denial of his motion to set aside the default judgment were [sic] erroneous, asserting, instead, that the trial courts error in this regard is likewise axiomatic. We are unfamiliar with the axiom to which Patton refers and disagree with his analysis as to the existence of error.

Except where the moving party submits an attorneys affidavit of fault, relief under Code of Civil Procedure section 473 for mistake, inadvertence, surprise, or excusable neglect is discretionary. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) Because such a motion is addressed to the sound discretion of the trial court, its ruling will not be disturbed on appeal absent a clear showing of abuse. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.) The burden of showing an abuse of discretion rests on the appellant. (Broadway Fed. etc. Loan Assoc. v. Howard (1955) 133 Cal.App.2d 382, 401.) On review, we may not substitute our judgment for that of the trial courts express or implied findings if they are supported by substantial evidence. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) All issues of credibility are within the province of the trier of fact, so all conflicts are resolved in favor of the respondent. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)

Patton claims his default was Matrangas fault. A party seeking relief on the basis of mistake, inadvertence or excusable neglect of his attorney must show that the neglect was excusable because the negligence of counsel is imputed to the client. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Excusable neglect is defined as an error that a reasonably prudent person under the same or similar circumstances might have made. (Ibid.) Attorney negligence is not imputed to the client where the application for relief is accompanied by the attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., 473, subd. (b).) Patton presented no affidavit of fault executed by Matranga so this basis for relief was unavailable to him.

In the absence of such an affidavit, Patton was required to establish that the actions of his counsel amounted to positive misconduct. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 236, fn. 6.) While Patton complains loudly and bitterly about Matranga, he has not shown positive misconduct. On appeal, his claim of attorney misconduct is grounded in the assertion that his second attorney did not seek any discovery from him before the court entered its default judgment against him. He also argues that counsel was negligent in failing to correct her predecessors failures to respond to discovery requests, and failed to file oppositions to respondents motions.

However, in the trial court, his moving papers asserted he was completely unaware of discovery orders, the terminating sanctions, or the default judgment; in his reply to Hayess opposition to the motion he asserts that Matranga pocketed the check that attorney Leyvas firm tendered as payment of the discovery sanctions. However, the letter was not signed by the purported author, the check does not appear to be canceled, and there is no evidence the letter was actually sent by Leyvas law firm, or received by Matranga.

In opposition to Pattons motion, Matranga explained her efforts to obtain information from Patton to provide in response to discovery orders, among other aspects of her representation. She admitted she did not provide Patton with advance notice of the default prove-up hearing. The trial court found her declaration to be credible, and did not find any neglect, excusable or inexcusable, or misconduct on her part; instead, the court specifically found that Patton was not cooperating with counsel and that she was doing the best she could with what she was being provided. The court thus concluded it was not unconscionable to apply the general rule charging the client with his attorneys neglect. We agree.

The trial courts findings, which are binding upon us, mean that Pattons default, whether attributed to his neglect or that of the attorney, was not excusable. Absent a showing of excusable neglect, relief under section 473 is not warranted. (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 922-923.)

The trial courts judgment denying the motion for relief from the default judgment is affirmed.

C. THE DEFAULT JUDGMENT IS NOT VOID ON ITS FACE.

Patton argues the default judgment is void because the respondent did not specify the amount of damages in his complaint, and thus the default judgment exceeds the prayer. He also asserts the plaintiff did not file and serve a statement of damages. Because Patton did not include, in his appendix, all of the documentation relating to the default judgment, we obtained them on our own motion. The now complete record contradicts Pattons assertion since it shows Hayes submitted a declaration of damages, which was submitted in connection with the default prove-up hearing.

Patton argues the amount of damages awarded exceeds the amount of the prayer. However, because this was not a personal injury case, Hayes was not required to specify a dollar amount in the prayer.

Except for personal injury or wrongful death cases, the required notice may be either in the prayer or in the allegations in the body of the complaint. (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417-418.) It is true that where a specific amount of damages is alleged in a complaint, a judgment awarding damages in excess of that amount is beyond the trial courts authority. (Code Civ. Proc., 580.) This rule applies even where the default is entered after an answer has been stricken for discovery violations. (Greenup v. Rodman (1986) 42 Cal.3d 822, 827-828.) However, in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. (Code Civ. Proc., 580, subd. (a).)

In other words, the complaint need only specify the type of relief requested, and not the specific dollar amount sought. (Cassel v. Sullivan, Roche & Johnson (1999) 76 Cal.App.4th 1157, 1163-1164 [applied to an action for account]; see also In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 879 [checking appropriate boxes on marital dissolution form to indicate wife intended to seek a division of property provided adequate notice to husband despite failure to allege monetary value for the property sought to be divided].)

Hayes did not specify the damages in his prayer. Instead, he explained the nature of his losses in the allegations of the complaint. Hayes also provided a declaration outlining the damages he intended to seek at the default prove-up. Because no damages were specified in the prayer, he was not awarded damages in excess of the prayer.

Patton also complains that the basis for the damage figure is obscure. Not so. Hayes provided a declaration as to the extent of damages sought in connection with his default prove-up hearing, which we have incorporated into the appellate record on our own motion. The allegations of the complaint along with the default prove-up evidence supports the amount damages awarded in the judgment.

The allegations of the complaint were sufficient to put Patton on notice of the nature and extent of damages, despite the lack of a specific demand in the prayer. The judgment is not void on its face.

5. Disposition

The judgment is affirmed. Appellant will bear the costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/McKinster

J.

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^[1] Retired judge of the San Luis Obispo Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.