The opinion of the court was delivered by: Siggins, J.
Tucker v. Kaiser Permanente CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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 ...