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November 30, 2010


The opinion of the court was delivered by: Siggins, J.

Tucker v. Kaiser Permanente CA1/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Novena Tucker appeals from the trial court's order denying her motion seeking relief from a judgment pursuant to Code of Civil Procedure section 473, subdivision (b).*fn1 Tucker's employment discrimination suit was dismissed following the grant of summary judgment in favor of Kaiser Permanente Medical Group (Kaiser). Tucker claims her former attorney's alleged misconduct and her own clinical depression demonstrate excusable neglect warranting relief from judgment. We conclude the trial court did not abuse its discretion when it denied relief and affirm. Kaiser also seeks sanctions on the ground that Tucker's appeal is frivolous. We conclude Kaiser has not shown sanctions are appropriate under the rigorous standards of In re Marriage of Flaherty (1982) 31 Cal.3d 637, and therefore deny Kaiser's motion.


Tucker began working at Kaiser as a medical assistant in 1992. In late 2006, she was terminated after she was involved in a physical altercation with another employee. She sued Kaiser for race discrimination and retaliation under the Fair Employment and Housing Act (FEHA). She filed suit in propria persona, but attorney Michael Goforth undertook her representation in January 2008.

Things apparently did not go well with their attorney-client relationship, and in September 2008, Goforth moved to withdraw from Tucker's representation. Tucker responded to Goforth's motion with a substitution of counsel stating she would represent herself. She also sought sanctions against Goforth and wanted him to waive his fees due to their "dysfunctional working arrangement." Tucker appeared and opposed the motion to withdraw at the hearing, but had not provided notice that she wished to contest the court's tentative ruling. The court relieved Goforth of Tucker's representation on October 31, 2008, and the case had a February 2, 2009 trial date.

While Goforth's motion to withdraw was pending, Kaiser moved for summary judgment on the basis that Tucker was terminated for a valid nondiscriminatory reason, and she never engaged in protected activity that could give rise to a retaliation claim under the FEHA. Kaiser's motion was to be heard on December 26, 2008.*fn2 Tucker filed no opposition, and the court's tentative ruling was adopted as final. Kaiser was granted summary judgment on the grounds that Kaiser demonstrated it had a legitimate reason for Tucker's termination, Tucker offered no evidence to show its reason was pretextual, and Tucker could not establish essential elements of her retaliation claim.

On December 26, the day that Kaiser's motion for summary judgment was to be heard, Tucker filed her declaration seeking an extension of time to oppose the motion. Tucker wanted more time so she could hire a new attorney. Kaiser opposed the request on the basis that Tucker should have obtained new counsel in the three months that passed between Goforth's withdrawal and the summary judgment hearing. At a hearing on December 30, the court vacated its summary judgment ruling and gave Tucker until January 5, 2009, to oppose the motion.

Tucker filed her opposition to the motion in propria persona. It included her own declaration, various records and documents, and the entire deposition of her former work supervisor at Kaiser. She was specially represented by counsel at the hearing on the motion. Her lawyer argued that Kaiser was not entitled to summary judgment because its moving papers contained inadmissible hearsay. After considering Tucker's opposition and the merits of Kaiser's motion, the court again entered judgment in favor of Kaiser. Kaiser served notice of entry of judgment on Tucker by mail on January 29, 2009.

Tucker did not move for a new trial, nor did she appeal from the judgment. Instead, on June 2, 2009, she moved for relief from the judgment pursuant to section 473, subdivision (b) on the grounds that it was taken against her as a result of her excusable neglect. In support of her motion, Tucker claimed she was wrongfully abandoned by Goforth when she disagreed with his settlement recommendation, and that she did not have adequate opportunity to find new counsel between Goforth's withdrawal on October 31 and the summary judgment hearing on January 16. Tucker also submitted an unsworn letter from her psychiatrist that stated in its entirety: "I have been treating Novena Tucker since 4/16/07. She suffers from depression. Her mood disorder coupled with her lack of understanding of the legal system made it impossible for her to present her case appropriately in the courts. [¶] Attorney from Kaiser was aware of her fragile condition as they had her records to review."

The trial court denied Tucker's motion. It declined to consider her reply papers that were untimely filed the day of the hearing, and concluded that Tucker did not show any excusable neglect attributable to her addressing Kaiser's summary judgment motion.*fn3 Goforth's withdrawal was not a basis for relief from the judgment because Tucker substituted in his place on October 31, was present when he moved to withdraw and was granted a continuance of the summary judgment proceedings to January 5, 2009, to file her opposition. The court also concluded that the letter from Tucker's psychiatrist did not establish good cause for relief from the judgment, and that the judgment was based on the merits of the case. Tucker did not show "that any evidence exists that would have resulted in a different order." Tucker timely appealed.


A. Tucker's Request for Relief Under Section 473

Section 473, subdivision (b) authorizes the trial court to relieve a party or his or her legal representative from a judgment or dismissal taken against them as a result of "mistake, inadvertence, surprise, or excusable neglect." "The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence." (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528, fn. omitted.) "In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597.) "[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court." (Id. at p. 598.) An order denying a section 473 motion will be reversed only if the trial court clearly abused its discretion. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354.)

Tucker claims she is entitled to relief because her attorney abandoned her after she declined to accept Kaiser's settlement offer, and she relies on an exception to the general rule that an attorney's negligence is imputed to the client and cannot support section 473 relief. (See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898-899 [attorney's neglect must be so extreme as to amount to " 'positive misconduct' by which plaintiff was 'effectually and unknowingly deprived of representation' "].) The cases Tucker relies upon are all distinguishable because they involve an attorney's egregious failure to act that caused the dismissal of a client's case while the attorney client relationship still existed and the client was appropriately relying on the attorney's representation. (See Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 206 [plaintiff's counsel filed a writ petition and did nothing further]; Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 70 [attorneys failed to prosecute action for nearly four years despite repeated client inquiries]; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 353-354 [attorney continually assured defendant he would represent him, but failed to file an appearance or set aside the resulting default]; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 391 [attorney's extreme neglect "effectually and unknowingly" deprived client of representation].) In Tucker's case, Goforth moved to withdraw as her counsel before Kaiser's summary judgment motion was filed. The trial court granted his motion more than two months before the summary judgment motion was heard.*fn4 Tucker was not "effectually and unknowingly" deprived of representation as were the parties who the reported cases recognize may successfully move for section 473 relief on account of their counsel's conduct. (Cf. Daley v. County of Butte, supra, at p. 391; see also Carroll v. Abbott Laboratories, Inc., supra, at pp. 899-900 [exception based on attorney's " 'positive misconduct' " should be narrowly applied].)

While Tucker claims her attorney did not advise her of the pendency of the summary judgment motion before he withdrew, the record shows the court notified Tucker of the December 26 hearing in mid-November.*fn5 The court also allowed Tucker additional time to file her opposition, and considered it on the merits when it granted summary judgment for Kaiser. The conduct of Tucker's attorney did not lead to dismissal of her suit on procedural grounds, and the public policy that favors disposition of cases on the merits is not implicated by the court's order denying relief under section 473. (See Ambrose v. Michelin North America, Inc., supra, 134 Cal.App.4th at pp. 1355-1356 [summary judgment not analogous to default when court resolved case on its merits]; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [pro per litigants not exempt from procedural rules]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 685, 694 [moving party entitled to relief from default under section 473 when it reasonably relied on its insurer to defend]; cf. also Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 783, 791 [no abuse of discretion to grant motion to vacate summary judgment based on newly discovered and highly relevant evidence arguably not uncovered earlier due to opponent's failure to fully respond to discovery].)

Tucker's claim that her depression interfered with her ability to understand the proceedings and supports her claim of excusable neglect is unpersuasive, and the case she relies upon is distinguishable. In Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, the court affirmed a grant of relief from default under section 473 where an elderly defendant testified he was "mentally ill" as a result of a series of strokes he suffered at the time he received the summons and complaint and his long-time attorney testified that after the strokes he was easily confused when conducting his business affairs. (Kesselman, supra, at pp. 198, 200.) Here, Tucker chose to represent herself in propria persona after her former attorney filed a motion to withdraw from the case and she was able to take various actions in that capacity. She communicated with opposing counsel; obtained a continuance to allow her additional time to oppose summary judgment; filed her opposition to the motion and other documents including a motion to amend her complaint and her case management statement; and retained an attorney to appear specially for her at the continued hearing on summary judgment. Tucker's acknowledgment that she consulted with additional counsel who declined to represent her also undercuts her argument that her depression was so disabling she could not understand the proceedings.

Moreover, Tucker has not shown the trial court erred when it concluded the letter from her psychiatrist was insufficient to show "that her depression prevented her from taking action that would have resulted in a different result on the motion for summary judgment." The letter was extremely brief and stated its broad conclusion without reasoned analysis or reference to the relevant facts. (See Bay Area Rapid Transit Dist. v. Superior Court (1996) 46 Cal.App.4th 476, 481 [discounting value of expert's conclusory declaration]; see also Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 ["The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed"].)

Tucker is unable to show that excusable neglect on her part caused the trial court to grant the motion for summary judgment. Rather, that ruling was based on the merits, and Tucker never came forward with any evidence that could justify a different result. Tucker has not shown the trial court abused its discretion when it concluded she failed to show she was entitled to relief under section 473, subdivision (b).

B. Kaiser's Motion for Sanctions

Kaiser has filed a motion asking that we award sanctions on the ground that Tucker's appeal is frivolous.*fn6 But "an appeal should be held to be frivolous only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.] [¶] . . . [T]he punishment should be used most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650-651.) While Tucker's appeal is without merit, Kaiser has not shown it justifies imposition of sanctions under the exacting standards of Flaherty.


The order denying relief under section 473, subdivision (b) is affirmed. Kaiser's motion for sanctions on appeal is denied.

We concur: McGuiness, P.J. Jenkins, J.

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