Sao v. Fregoso

Filed 9/25/08 Sao v. Fregoso CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Plaintiffs Heng Sao, Thoang Vann, Ne Chim, Lestly Sip, and Emily Sip appeal from an order denying their motion pursuant to Code of Civil Procedure section 473[1] to vacate dismissal of their action against defendants Jason C. Clifton, Martin S. Fregoso, and Verna Fregoso. We conclude that the trial court erred and reverse the order.

I. Statement of the Case

On August 10, 2006, plaintiffs filed a complaint in which they alleged that defendants negligently drove and entrusted their vehicle on August 26, 2004, thereby proximately causing injuries to plaintiffs.

On December 12, 2006, plaintiffs counsel informed the trial court at a case management conference that plaintiffs had served Martin Fregoso and Verna Fregoso, but not Clifton, with the summons and complaint. According to plaintiffs, Clifton had just been released from jail and his whereabouts were unknown. The same day, the trial court issued an order to show cause for plaintiffs failure to serve Clifton within 60 days after the complaint was filed, and set the matter for a hearing on the next available date.

On December 18, 2006, the trial court ordered the parties to appear on February 1, 2007, and show cause why sanctions should not be imposed or why the above entitled case should not be dismissed for failure to serve summons and complaint as required by California Rules of Court 201.7. The notice to plaintiffs was sent to plaintiffs counsel at 1486 Huntington Avenue, Suite 207, South San Francisco, CA 94080. However, since plaintiffs counsels address of record was 150 Executive Park Blvd., Suite 3800, San Francisco CA 93134, the notice was returned to the superior court.

After plaintiffs and their counsel failed to appear at the hearing on February 1, 2007, the trial court dismissed the action without prejudice.

On July 26, 2007, plaintiffs brought a motion to vacate the order of dismissal pursuant to section 473, subdivision (b). The motion stated that plaintiffs failure to appear at the February 1, 2007 hearing was the result of mistake, inadvertence, surprise, or excusable neglect. In their memorandum of points and authorities, however, plaintiffs also referred to the mandatory relief provisions of section 473, subdivision (b). In addition, plaintiffs counsel submitted a declaration that stated in relevant part: On or about July 7, 2007 while conducting a mid-year review of litigation cases, plaintiffs counsel learned from the courts computer that this action had been dismissed as of February 1, 2007. [] . . . [On or] about July 20, 2007, plaintiffs counsel inspected and reviewed the court file and obtained copies of the December 12, 2007 notice, the returned mail and the minutes of February 1, 2007 hearing containing the order of dismissal. []  . . . Undersigned counsel believes that had he looked into the courts computer before February 1, 2007, he would have learned of the February 1, 2007 hearing and prevented the dismissal of the action.

On September 13, 2007, the trial court held a hearing on the motion to vacate. The trial court noted that the motion was filed five months and 26 days after the action was dismissed and there was no declaration of attorney fault. The trial court also questioned whether there was excusable neglect, and denied the motion.[2]

II. Discussion

Though plaintiffs sought relief in the trial court pursuant to both the discretionary and mandatory provisions of section 473, subdivision (b), their appeal focuses on the mandatory provisions. They contend that the trial court erred in refusing to consider their counsels declaration of fault.

Section 473, subdivision (b) provides mandatory relief from an order of 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 attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, . . . unless the court finds that the default . . . was not in fact caused by the attorneys mistake, inadvertence, surprise or neglect. The purpose of this provision was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257, quoting Huens v. Tatum (1997) 52 Cal.App.4th 259, 264.)

The trial court has no discretion to deny relief when the requirements for the application of the mandatory relief provision of section 473, subdivision (b) have been met. (SJP Ltd. Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516 (SJP Ltd.).) However, the trial court may deny relief when the court finds the default was not in fact the attorneys fault, for example when the attorney is simply covering up for the client. [Citation.] (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821.) Where the facts are undisputed, our review is de novo. (SJP Ltd., at p. 516.)

Here, plaintiffs motion was timely, in proper form, and the trial court did not find that their failure to appear at the February 1, 2007 hearing was not their counsels fault. Instead, the trial court found that there was no declaration of attorney fault. We disagree. Plaintiffs counsel submitted a declaration identifying his mistake or inadvertence that caused the dismissal of plaintiffs case. Following the case management conference, plaintiffs counsel was aware that a hearing on the order to show cause for failure to serve Clifton would be scheduled for the next available date. When plaintiffs counsel did not receive written notification, he was remiss in failing to check the courts computer to determine when the hearing would be held. Thus, his declaration demonstrates that he failed to do something that he was obligated to do. Since plaintiffs counsel accepted blame for his role in failing to attend and oppose the dismissal of the case, the trial court was required to grant the motion to vacate the order under the mandatory relief provisions of section 473, subdivision (b).

III. Disposition

The order is reversed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Rushing, P.J.

_____________________________

McAdams, J.

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Sao, et al. v. Fregoso, et al.

H0322272

[1] All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[2] Plaintiffs filed a notice of appeal on November 9, 2007. When plaintiffs counsel discovered that a signed order of dismissal had not been filed after the dismissal in February 1, 2007, and that a signed order denying the motion to vacate had not been filed after the September 13, 2007 hearing, he obtained the signed orders. Both orders were entered on March 19, 2008. This court then granted plaintiffs motion to take judicial notice of the orders. When the notice of appeal is filed after entry of the minute order, a reviewing court has discretion to entertain a premature appeal as long as a judgment was actually entered, there is no doubt concerning which ruling appellant seeks to have reviewed, and respondents were not misled to their prejudice. [Citation.] (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69.) Here, judgment was entered, plaintiffs have clearly specified the ruling that they are challenging, and defendants have not indicated that they have been prejudiced. Accordingly, we will consider the matter on the merits.