IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)
November 10, 2011
LOUIS FRANCIS, PLAINTIFF AND APPELLANT,
DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL., DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. 46748)
The opinion of the court was delivered by: Hull , Acting P. J.
Francis v. Dept. of Corrections
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On direction from this court on remand, the trial court reinstated plaintiff Louis Francis's personal injury action against three individual California Department of Corrections and Rehabilitation (CDCR) employees, and entered their defaults. It then granted the employees relief from default (Code Civ. Proc., § 473), and sustained their demurrer to the complaint without leave to amend.
In this pro se appeal, Francis contends the trial court erred in granting defendants relief from default based on their attorney's declaration; erred thereafter in sustaining their demurrer; and erred in failing, when it ordered CDCR to pay his court costs, to enter a judgment requiring CDCR to pay by a date certain.
Finding no error, we affirm the judgment.
FACTS AND PROCEEDINGS
For a description of the parties' underlying dispute and the proceedings that led to this appeal, we rely in part on our previous unpublished opinion. (Francis v. California Department of Corrections and Rehabilitation (Mar. 8, 2010, C061160)[nonpub. opn.] (Francis I).)
Francis is a prison inmate, who contends he was injured when prison personnel (1) improperly seized and/or disposed of his personal property and legal materials in 2006 in retaliation for his having filed and pursued a grievance; and (2) caused him to be physically attacked by another inmate in September 2007, refused to protect him from that attack, and then refused to release him from the administrative segregation in which he was placed as a result of the attack. Francis sued CDCR and eight individual defendants: James Tilton, Lea Ann Chrones, M. Dangler, D.B. Lewis, N. Grannis, R. Weeks, Correctional Officer Bartos (for whom the parties give neither a first name nor initial), and R. Gamberg. Each of the individual defendants is sued in his or her personal and official capacities. The complaint was filed on April 14, 2008.
The first demurrer
The individual defendants were not served with the complaint at the same time. When the first defendants were served by Francis, they requested representation from the Office of the Attorney General, and Deputy Attorney General Stanton W. Lee filed a demurrer on their behalf. The demurrer asserted that CDCR is statutorily immune from suit; Francis had failed to timely file the complaint within six months of having had his tort claim rejected (i.e., on or before February 28, 2008) as required by Government Code sections 945.6 and 911.2; and Francis otherwise failed to state a cause of action against any defendant.
While the demurrer was pending, one other defendant was served and requested representation, Deputy Lee joined him in the demurrer. While the demurrer was pending, defendants Gamberg, Weeks, and Dangler were also served with the complaint and sought representation from the Office of the Attorney General, but these defendants never joined in the pending demurrer.
However, the trial court sustained the demurrer as to all served defendants, finding that Francis's lawsuit is barred by the statute of limitations because he failed to file it within the six-month limitations period. Thereafter, a judgment was entered in favor of all defendants.
After the court sustained the demurrer without leave to amend, but before judgment was entered, Francis asked the superior court to enter the defaults of three defendants who had been timely served, but never joined in the demurrer: Gamberg, Weeks, and Dangler. The superior court refused Francis's filing because it mistakenly believed the demurrer of all defendants had been properly sustained.
Realizing his error, the Attorney General responded by filing a separate, second, demurrer on behalf of Gamberg, Weeks, and Dangler. The second demurrer was based on the same legal principles as the first demurrer and was sustained on the same grounds.
Francis appealed, arguing the trial court erred in sustaining the demurrers without leave to amend, and erred in refusing to enter the defaults of defendants Gamberg, Weeks, and Dangler. (Francis I, supra, C061160.)
In Francis I, this court found the trial court properly sustained the first demurrer as to the defendants in whose names it was filed, or who joined it, because Francis failed to comply with the Government Claims Act. However, we concluded the trial court erred in refusing to enter the defaults of defendants Gamberg, Weeks, and Dangler because, at the time of Francis's timely request to enter their defaults, these three defendants had been served with the complaint and had not properly responded.
To "repair the procedural machinations that followed the erroneous denial of Francis's request for entry of the defaults of defendants Gamberg, Weeks, and Dangler," we reversed the judgment in favor of defendants Gamberg, Weeks, and Dangler, struck the order sustaining the second demurrer, directed the superior court clerk to enter the defaults of these three defendants, and awarded Francis his costs on appeal. In a footnote, we also noted that the Attorney General "may, of course, seek relief from those defaults." (Francis I, supra, C061160.)
Motion to set aside the defaults and the instant demurrer
After the defaults of defendants Gamberg, Weeks, and Dangler were entered, the Attorney General moved to set them aside due to mistake, inadvertence, and unfair surprise. (Code Civ. Proc., § 473, subd. (b) (hereafter § 473(b)).)
The deputy attorney general assigned to the defense of this matter, attorney Lee, submitted a declaration in support of the motion, in which he averred: "When a lawsuit is assigned to an attorney at the Office of the Attorney General (OAG), it is normally the case that at least one defendant has been served with the complaint and has requested that the OAG provide a defense. [¶] . . . In this case, when his matter was assigned to me, several defendants had already been served and had already requested representation. [¶] . . . Because it is not uncommon for inmate plaintiffs to never complete service on some of the named defendants, I elected to file a responsive pleading on behalf of those defendants that had already been served and had already requested representation, rather than ask the Court for an extension of time to file a responsive pleading until Francis completed service of his complaint on all defendants.
". . . I mistakenly believed that a joinder to the demurrer was filed on behalf of Weeks and Dangler and in good faith, included Weeks and Dangler in my subsequent pleadings, including the proposed order after the hearing on [the first] demurrer.
". . . Because of the piecemeal manner in which this case was initiated by [Francis], a mistake was made and although a joinder had been filed on behalf of one late served defendant, a joinder was not filed on behalf of Weeks and Dangler, although it was believed a joinder was filed.
". . . The omission was inadvertent because both Weeks and Dangler were entitled to the same statute of limitations defense as all the other defendants in this matter. Had I realized the omission, I would have made the correction and simply filed a joinder to the demurrer before Francis requested [entry of] default.
". . . On researching why an appearance was not made on behalf of Gamberg, I determined that his Request for Representation was lost in the mail. Although it was mailed by the Litigation Office at the prison where Gamberg worked, it was never received by the OAG."
At the same time, defendants Gamberg, Weeks, and Dangler filed a demurrer to the complaint, on the ground (among others) that Francis failed to comply with the Government Claims Act, by filing the lawsuit more than six months after receiving the rejection of his claim by the Victim Compensation and Government Claims Board. We note that, notwithstanding Francis's assertion on appeal to the contrary, this demurrer was timely.
Francis opposed the motion to set aside the defaults, arguing (among other things) that defendants' counsel had previously refused to take responsibility for the failure of Gamberg, Weeks, and Dangler to timely respond to the complaint, and Francis I stands for the proposition that Francis should be given the opportunity to prove an entitlement to damages. Francis also filed a written opposition to the demurrer, in which he asserted that defendants have waived the right to assert a statute of limitations defense.
Following a hearing, the trial court granted defendants' motion to set aside the defaults. Its order states that attorney Lee's declaration states he "'mistakenly believed that a joinder to the demurrer was filed on behalf of Weeks and Dangler and in good faith included them in subsequent pleadings and the proposed order [sustaining the demurrer].' Therefore as to Dangler and Weekes[,] Mr. [Lee] has shown that he was at fault and relief is mandatory (CCP 473(b))[.] With respect to relief for Gamberg[,] this is based on lost mail according to the declaration of Mr. [Lee] so relief from default falls within the discretion of the court. In reviewing the matter and the procedural history of the case it lends itself to the confusion pronounced in the motion and the request for set aside of default based on inadvertent mistake and neglect and therefore will be granted. It is also noted that the court favors that matters should be decided on the merits rather than on procedural grounds. Therefore the Motion to Set Aside the Default of Weeks, Dangler and Gamberg will be granted."
The trial court later conducted a hearing on defendants' demurrer, and sustained it without leave to amend, on the ground Francis "failed to comply with the requirements of the Tort Claims Act since he filed his lawsuit more than six months after receiving the rejection of his claim with the Board and this defect cannot be cured."
After defendants' demurrer was sustained, Francis filed a motion seeking permission to file a first amended complaint, in which he sought to add a federal civil rights cause of action. The court denied Francis's motion on the grounds he filed it less than 16 days before the scheduled hearing date (Code Civ. Proc., § 1005, subd. (b)) and, before it was filed, defendants' demurrer to the complaint had been sustained without leave to amend.
Other facts appear, as relevant, in the Discussion portion of the opinion.
The Trial Court Did Not Abuse Its Discretion in Setting Aside the Defaults of Defendants Gamberg, Weeks, and Dangler
Section 473(b) states, "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 proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, 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 attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310."
As can be seen, the statute authorizes the trial court to relieve a party from a default entered as a result of the party's or her attorney's mistake, inadvertence, surprise or neglect. The statute contains a discretionary provision, which enables a court to "'relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.' [Citation.] . . . [¶] Section 473(b) also contains a 'mandatory' or 'attorney affidavit' provision" which relieves a party "if a default judgment or dismissal is the result of its attorney's mistake, inadvertence, surprise, or neglect, without regard to whether the neglect is excusable. [Citation.]" (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)
Defendants sought both mandatory and discretionary relief from the entry of their defaults: they sought "mandatory" relief for the defaults entered against Weeks and Dangler, and "discretionary" relief for the default entered against Gamberg.
As we shall explain, the trial court did not err in granting either mandatory or discretionary relief.
A. Mandatory Relief
Mandatory relief under section 473(b) is available "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 attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . ." (§ 473(b).) "[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief." (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612; see also Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 (Carmel).)
Thus, to the extent that the applicability of the mandatory relief provision does not turn on disputed facts, but rather, presents a pure question of law, it is subject to de novo review. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 612.) Where the facts are in dispute as to whether or not the prerequisites of the mandatory relief provision of section 473(b) have been met, we review the record to determine whether substantial evidence supports the trial court's findings. (Carmel, supra, 175 Cal.App.4th at p. 399.)
The "attorney fault" language was added to section 473 in 1988. (Carmel, supra, 175 Cal.App.4th at p. 399.) The purpose of the amendments was threefold: to relieve the innocent client of the consequences of the attorney's fault; to place the burden on the attorney; and to discourage additional litigation in the form of malpractice actions by the client. (Id. at p. 400.) Thus, the mandatory provision of section 473(b) protects only the innocent client and provides no relief for the client who participates in conduct leading to the default. (Ibid.) It creates an exception to the general rule that the client is chargeable with the negligence of his or her attorney. (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 296, fn. 6.)
Accordingly, relief is mandatory under section 473(b) when a declaration complying with section 473(b) is filed, even if the attorney's neglect was inexcusable. (Carmel, supra, 175 Cal.App.4th at p. 401.) And a declaration or affidavit is sufficient under this provision if the attorney provides facts showing that he or she was at fault, notwithstanding the attorney's contrary belief or attempt to deflect fault from himself or herself. (Ibid.) One court has characterized the mandatory relief provision of section 473(b) as the "attorney-falls-on-sword" provision. (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 33, fn. 5.)
Substantial evidence supports the trial court's conclusion that the defaults of defendants Weeks and Dangler were entered as a result of attorney Lee's mistake, inadvertence, surprise, or neglect. (§ 473(b); Carmel, supra, 175 Cal.App.4th at p. 399.) In his declaration, attorney Lee attests that Weeks and Dangler did not timely apply for joinder in the first demurrer because he mistakenly believed that a joinder request had already been filed on their behalf. And because he (mistakenly) believed Weeks and Dangler had been properly joined in the first demurrer, attorney Lee did not otherwise submit a timely response to the complaint on their behalf, which set the stage for the entry of their defaults.
In sum, because attorney Lee's declaration establishes that the defaults of Weeks and Danger were taken as a result of his mistake, the trial court was obliged to grant relief from the defaults. (Carmel, supra, 175 Cal.App.4th at p. 401.) There was no error.
B. Discretionary Relief
The discretionary relief provision of section 473(b) 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 proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
A motion for relief under the discretionary provision of section 473(b) is addressed to the sound discretion of the trial court. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.) "The standard by which an appellate court reviews a trial court ruling on a section 473 motion to set aside a default is well established as abuse of discretion. The fate of such a motion '"rests almost entirely in the discretion of the court below, and appellate tribunals will rarely interfere, and never unless it clearly appears that there has been a plain abuse of discretion."'" (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 237 [finding no abuse of discretion in failing to set aside default when it was caused by mistake of law].) Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse rests on the appellant. (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 663.)
Francis has not shown the trial court plainly abused its discretion in setting aside Gamberg's default. The court found that no request to join in the first demurrer was filed on Gamberg's behalf because his request for representation was "lost" in the mail. This conclusion is supported by attorney Lee's declaration that Gamberg sent a timely request for representation to the Office of the Attorney General, but that request was never received. The trial court did not abuse its discretion in impliedly concluding that, had Gamberg's request been received, attorney Lee would have filed a timely joinder on his request, as he had already done the same for another defendant served while the first demurrer was pending.
While a claim of lost mail is not grounds for automatic relief from a default (see People ex rel. Lockyer v. Brar, supra, 134 Cal.App.4th at pp. 663-664), Francis has not shown that the trial court abused its discretion in concluding that the loss of Gamberg's request for representation--which ultimately led to attorney Lee's failure to file any timely response to the complaint on Gamberg's behalf--was a result of inadvertent mistake or neglect.
II The Trial Court Did Not Abuse its Discretion in Sustaining the Demurrer Without Leave to Amend
The trial court sustained the demurrer without leave to amend on the ground Francis failed to file this action within the six-month limitations period for bringing a governmental tort claim. (Gov. Code, § 945.6.) In Francis I, this court affirmed the trial court's decision to sustain an identical demurrer by the other defendants on the same grounds. In so doing, we upheld the trial court's determination that Francis failed to comply with the Government Claims Act, a prerequisite to bringing a complaint for injuries suffered as a result of the acts or omissions by a public entity or its employees.
Under the doctrine of law of the case, an appellate court will not review matters that were determined in a prior appeal of the same case and that have become law of the case. (People v. Harvey (1958) 156 Cal.App.2d 516, 518; People v. Shuey (1975) 13 Cal.3d 835, 841, abrogated on other grounds, as recognized in People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5.) In Shuey, the court stated that the doctrine of law of the case is one of the "fundamental rules of appellate review [that] are specifically designed to preclude the possibility of . . . multiple litigation of the same issue," and it applies to both criminal and civil matters. (Shuey, at p. 841.)
Here, the issue of whether Francis's complaint complies with the Government Claims Act has already been decided by this court in Francis I, when we affirmed the trial court's judgments sustaining the other defendants' demurrers without leave to amend. Law of the case may apply "where the prior appeal is from a decision short of a full trial, such as judgment on [a] demurrer," non-suit order or denial of an anti-SLAPP motion. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 15, fn. 3.) Francis's previous appeal was based in part on the trial court's sustaining of the other defendants' demurrers without leave to amend and therefore allows for the application of law of the case here.
Francis nonetheless insists that the trial court erred in sustaining the demurrer because, by failing to timely respond to the complaint and allow their defaults to be taken, Weeks, Gamberg, and Dangler "waived" the right to assert Francis had failed to timely file the complaint within six months of having had his tort claim rejected, as required by Government Code sections 945.6 and 911.2. The basis for his waiver claim is that the statute of limitation issue "was raised by these respondents on the first appeal . . . was decided against them." He misunderstands the current effect of what transpired in Francis I. In that opinion, we stated that, because Gamberg, Weeks, and Dangler had not joined in the first demurrer, they had not yet properly asserted the statute of limitations defense and were not entitled to entry of judgment in their favor. Once their defaults were entered and then properly set aside, however, these defendants were entitled to raise a statute of limitations defense on demurrer. (See Denke v. Bowes (1947) 77 Cal.App.2d 642, 644.)
We also reject Francis's contention that the trial court erred in denying his motion to file a first amended complaint while the third demurrer was pending.
First, the record shows the superior court twice rebuffed Francis's attempt to file his motion to file a first amended complaint because it had not been properly served. As a result, the motion was not timely filed: a moving party must serve and file his moving papers at least 16 court days before the scheduled hearing, and Francis did not. (Code Civ. Proc., § 1005, subd. (b).)
Second, Francis's motion was filed and heard after the court had already sustained defendants' third demurrer without leave to amend, having found that the complaint's defects were not curable by amendment. Thereafter, his motion to amend the complaint came too late.
III The Award of Costs to Francis Need Not Be Modified
The trial court entered two orders awarding costs to Francis. It awarded Francis costs of $44.80 in connection with the order setting aside the defaults, and awarded Francis costs on appeal of $45.34, consistent with our opinion in Francis I. Both cost orders were prepared by Francis; each order states defendants shall pay Francis's "authorized representative," but neither requires payment by a date certain.
On appeal, Francis suggests, and the defendants admit, that these costs have not been paid. Francis asks that the orders be amended to provide for payment by a date certain, or for a judgment to be entered on the cost orders. Defendants insist payment has been delayed only because Francis has failed to respond to their request that he identify his "authorized representative" and, in any event, this matter should first be raised in the trial court.
We agree that the fact questions raised by defendants' admitted failure to pay are best resolved in the trial court in the first instance.
Finally, we note that cost awards may also accrue interest at the rate of 10 percent per annum from the date of entry of the trial court's award. (See Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 137-138.)
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: ROBIE , J. MAURO , J.
© 1992-2011 VersusLaw Inc.