Zucker v. Webcor Construction

Filed 2/25/09 Zucker v. Webcor Construction CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

I.

INTRODUCTION

Plaintiffs, 35 individual unit owners in a development called The Beacon, appeal from an order denying them leave to file a Tardy Second Amended Complaint and granting interlocutory dismissal. They maintain that the trial court abused its discretion in denying their motion to amend their complaint to allege causes of action against the developments general contractor, Webcor Construction, Inc. (Webcor). We affirm.

II.

BACKGROUND

We set forth the procedural and factual background of this case to the limited extent necessary to address the sole issue on appeal. Plaintiffs are 35 individual owners of units in The Beacon development, who brought the underlying class action alleging 15 causes of action, including construction defect and negligent misrepresentation claims. Defendant Webcor served as general contractor on the project.

Plaintiffs did not name Webcor as a defendant in their original complaint. In the first amended complaint, Webcor was substituted for one of the Doe defendants in the caption. None of the causes of action in the first amended complaint named Webcor, nor did the original complaint allege that any cause of action was brought against a Doe defendant.

Webcor filed a general demurrer to the first amended complaint on the basis that it alleged no cause of action against it. By order dated October 5, 2007, the court[1] sustained the demurrer with leave to amend, and granted plaintiffs, represented by the Catalano law firm, until October 26, 2007, to file a second amended complaint.

Sometime after 4:00 p.m. on October 26, 2007, the Referees office received a telephone call from Mr. Robert von Esch, who identified himself as an attorney with the law firm of Schroeder & Associates. Mr. von Esch said that he represented Plaintiffs, . . . and advised the Referees case manager . . . that because of the fires then raging in San Diego County, Plaintiffs needed a three day extension of time to file their [second amended complaint]. . . . The Referee was not in the office . . ., so Mr. von Esch was unable to receive the extension of time he sought. [] When Mr. von Esch could not receive an extension, he faxed to Judge Warren a document titled Second Amended Class Action Complaint (Amended Pursuant to CCP  472 . . . ). That document was not signed as required by California Rule[s] of Court[, rule] 128.7, nor had it been filed with the Superior Court as required by California Rule[s] of Court[, rule] 2.400(b). Moreover, it only listed Plaintiffs original counsel of record . . . (the Catalano Law Firm), both on the masthead and as signing counsel. Although Mr. von Esch represented that his firm had recently associated in with Patrick Catalano to co-counsel the case, neither Mr. von Esch nor his firm appeared anywhere on the document. The record does not contain a notice of association of attorneys.

On November 11, 2007, counsel for Defendant Mission Place wrote the Referee a letter with a copy to the Catalano Law Firm[,] . . . acknowledg[ing] receiving both Mr. von Eschs letter and the Second Amended Class Action Complaint. [Counsel] pointed out, however, that the complaint was tardy, that it was not signed, and that it had not been filed with the Court[,] . . . [and] advised that because of these deficiencies, his client would not be filing a responsive pleading . . . . Neither the Catalano Law Firm nor Mr. von Eschs firm responded to that letter. On November 15, 2007, counsel for Webcor wrote the Referee a letter, with copies to the Catalano Law Firm [referring to and adopting] the deficiencies cited by [Mission Places counsel] . . . and advised that his clients did not intend to file responsive pleadings until such time as plaintiffs counsel cures the stated irregularities or [the Referee] address[es] these matters. There was no response from plaintiffs counsel.

On December 4, 2007, counsel for Webcor requested that the Referee schedule a conference call with all counsel to discuss appropriate motion practice associated with plaintiffs failure to properly execute and file their Second Amended Complaint as ordered. . . . Copies of this letter were sent to the Catalano Law Firm. Plaintiffs did not respond.

On December 7, 2007, Defendant Mission Place filed a Motion for an Order Granting Interlocutory Judgment of Dismissal with Prejudice for those causes of action as to which the demurrers had been sustained, but as to which no operative amended pleading was then on file. By letter dated December 11, 2007, Mr. Jannik Catalano indicated that he had assigned the drafting of the second amended complaint to Mr. von Esch, but that  the clients were in disagreement as to . . . strategy . . . . As a result, the complaint was not approved nor agreed to by our clients prior to the filing deadline.  The letter indicates that plaintiffs attorneys agreed that they would submit the second amended complaint  in its unapproved state,  even though it was  incomplete,  and would explain to the Referee that an extension to file a new complaint would be necessary. . . . 

On December 17, 2007, plaintiffs filed a motion for leave to file a tardy second amended complaint, based on attorney mistake, inadvertence, surprise, or excusable neglect. Plaintiffs did not assert that the San Diego fires were a reason for relief, as Mr. von Esch had informed the referees office on October 26, 2007.

At a hearing on January 11, 2008, the referee heard plaintiffs motion for leave to file a tardy second amended complaint, as well as defendant Webcors motion for interlocutory dismissal. The court issued a written order in which it denied plaintiffs Motion to File a Tardy Second Amended Complaint, and granted Webcors motion for interlocutory dismissal, without prejudice. Plaintiffs filed a notice of appeal from the order they indicated was entered on February 25, 2008, and an amended notice of appeal from the order entered on February 29, 2008.[2]

On January 28, 2008, plaintiffs filed a Motion to Amend First Amended Complaint. On April 28, 2008, following a hearing on April 1, 2008, the court entered an order denying plaintiffs Motion to Amend First Amended Complaint.

On May 19, 2008, plaintiffs filed a petition for writ of mandate in this court, arguing that the court abused its discretion in denying both the Motion to File a Tardy Second Amended Complaint and the Motion to Amend First Amended Complaint. We denied that petition on May 29, 2008.

III.

DISCUSSION

Plaintiffs appeal from an order denying them leave to file a Tardy Second Amended Complaint, and granting an interlocutory dismissal without prejudice as to Webcor.[3]They argue the court abused its discretion by denying their motion, because the proceedings were in an early stage, the request was made in a timely manner, and the statute of limitations had not expired, [and] no prejudice was shown by Defendants . . . .

We begin our analysis by identifying precisely what is at issue in this appeal, given the multiple notices of appeal and varying captions on the briefs. Plaintiffs appeal is from the order dated February 25, 2008, and entered February 29, 2008. In that 22-page order, the Honorable James Warren, assigned as referee by the trial court, denied plaintiffs Motion to File Tardy Second Amended Complaint, and granted Webcors Motion for Interlocutory Judgment of Dismissal.[4]Plaintiffs correctly assert that the First Amended Complaint names Webcor in the caption . . . [but] did not put [it] into the construction defect causes of action. Plaintiffs then incorrectly claim that leave to amend was not granted. In fact, by its order dated October 5, 2007, and filed on December 21, 2007, the referee ordered that Plaintiffs shall have up to and including October 26, 2007 by which to file and serve their Second Amended Complaint. Plaintiffs raise no issues in their four-page opening brief regarding the interlocutory dismissal. Accordingly, the sole issue on appeal is whether the trial court abused its discretion in denying plaintiffs motion to file its admittedly Tardy Second Amended Complaint.

Plaintiffs sought relief from their failure to timely file their second amended complaint under Code of Civil Procedure section 473.[5] That section provides in pertinent 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 proceedings taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. ( 473, subd. (b).) Excusable neglect is neglect which might have been the act or omission of a reasonably prudent person under the same or similar circumstances. [Citation.] Not every mistake of law is excusable. [Citation.] To determine whether a person is entitled to relief for a mistake of law, the controlling factor is the reasonableness of the misconception of the law under the circumstances of the particular case. (Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 7.) Section 473 also requires that the party diligently seek relief within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. ( 473, subd. (b).) The courts order denying relief   shall not be disturbed on appeal absent a clear showing of abuse.   (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694.)

Plaintiffs claim that [i]n the absence of prejudice to the other party, it is an abuse of discretion to deny a motion to amend. First, the court did not deny a motion to amendit granted plaintiffs leave to file a second amended complaint. Plaintiffs attorneys failed to do so by the deadline specified by the court, and sought relief in the form of a motion to file a Tardy Second Amended Complaint. Second, even assuming there was no prejudice to Webcor, we note that a lack of prejudice to the opposing party does not demonstrate abuse of discretion on the part of the court. (See Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1187 [court cannot set aside a default . . . simply because the opposing party has not been prejudiced]; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 509 [fact that plaintiff fails to show any prejudice resulting from defendants claimed lack of diligence, although important, is not decisive].)

Here, the referee denied plaintiffs motion on the basis that they had not demonstrated any of the statutory bases for relief: mistake, inadvertence, surprise, or excusable neglect. ( 473, subd. (b).) In addition to a detailed factual description of the series of events leading up to plaintiffs motion, the 22-page February 29, 2008 order contains a six-page timeline of events relevant to this motion. The courts order indicates: Plaintiffs argue that the conduct involved should be properly categorized as a series of mistakes. . . . But the facts set forth here, while illustrating mistake, do not support the conclusion that the mistake was inadvertent or otherwise excusable, which is the requirement of governing case law. Rather, the facts describe a series of deliberate decisions [by Plaintiffs counsel] that turned out to be wrong.

Plaintiffs do not dispute, or even address, these factual circumstances. In fact, plaintiffs failed to include in the record any part of the pleadings or evidence that were before the referee, with the exception of the first amended complaint.

Accordingly, based on the record before us, we cannot say that the court abused its discretion in denying plaintiffs motion to file a Tardy Second Amended Complaint.

IV.

DISPOSITION

The order is affirmed. Webcor is awarded its costs on appeal.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Graham, J.*

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[1] The matter was heard before the Honorable James Warren (retired), appointed as judicial referee. The narrative text in quotations in our opinion is taken from Judge Warrens detailed order.

[2] The order was dated February 25, 2008, and filed on February 29, 2008.

[3] Though plaintiffs have indicated on the cover sheets of their opening brief and reply brief that their appeal is from orders entered on February 29, 2008 and April 28, 2008, their amended notice of appeal specifies only the February 29, 2008 order.

[4]Though not at issue in this appeal, the order alsodenied the motion of certain other defendants for interlocutory dismissals.

[5] Statutory references are to the Code of Civil Procedure.

* Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.