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Rodriguez v. Brill

California Court of Appeals, Fifth District

February 20, 2015

MARTA RODRIGUEZ, Plaintiff and Appellant,
THOMAS BRILL, Defendant and Respondent.

APPEAL from order of the Superior Court of Kern County, No. CV259482 Sidney P. Chapin, Judge.

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SD Smith and Steven D. Smith for Plaintiff and Appellant.

Clifford & Brown and Robert D. Harding for Defendant and Respondent.



Plaintiff Marta Rodriguez appeals from the denial of her motion for relief from judgment, which was brought under the mandatory provisions of Code of Civil Procedure section 473, subdivision (b) (section

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473(b)). The judgment was entered in favor of defendant Thomas Brill after the trial court dismissed Rodriguez’s complaint as a sanction for her failure to respond to discovery requests and to comply with an order compelling her to do so.

In an earlier appeal, we concluded the trial court did not abuse its discretion when it granted a terminating sanction and affirmed the judgment of dismissal. (Rodriguez v. Brill (Feb. 1, 2013, F063770) [nonpub. opn.].)[1] However, we did not reach the question whether Rodriguez was entitled to relief from the judgment of dismissal under the mandatory provisions of section 473(b), for inexcusable failures of her attorney. We remanded to permit the trial court to reconsider the motion for relief. The trial court did so and its new order denying the motion is the subject of this appeal.

The parties’ contentions present conflicting interpretations of the mandatory relief provision in section 473(b). We resolve those issues by adopting the following interpretations.

First, a judgment of dismissal that implements a terminating sanction for discovery abuse is a “dismissal entered” for purposes of section 473(b). Therefore, Rodriguez may apply for mandatory relief from the judgment of dismissal entered against her.

Second, the statutory phrase “unless the court finds” is ambiguous and we interpret it to require an explicit finding by a court that denies mandatory relief. (§ 473(b).) Here, the reporter’s transcript and the written order prepared by defense counsel do not contain the required finding.

Third, we assume for purposes of this appeal that mandatory relief under section 473(b) is not available when a client’s negligence or willful misconduct is a contributory cause of the terminating sanction. Based on the conduct described in the motion for a terminating sanction, the grounds listed in the court’s order granting the terminating sanction, and the record before us, we conclude that Rodriguez’s conduct was not a contributing cause of the terminating sanction. Thus, Rodriguez is eligible for mandatory relief, provided she satisfies the other statutory requirements.

Fourth, for purposes of section 473(b), we conclude an application for relief from a terminating discovery sanction is “in proper form” if (1) verified discovery responses are delivered to opposing counsel before the hearing on

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the application for relief and (2) the content of those responses substantially complies with applicable requirements. Here, Rodriguez’s proposed discovery responses substantially complied with the statute.

Based on the foregoing, and her attorney’s declarations of fault, Rodriguez was entitled to relief from the judgment resulting from the terminating sanction.

We therefore reverse the judgment and underlying order denying the motion for relief.


Brill is an attorney in the Bakersfield area. He and Rodriguez lived together as husband and wife for a number of years. When they separated, Rodriguez filed this action in 2006 against Brill, asserting that Brill promised to support her for the rest of her life and, in exchange, she gave up many opportunities to obtain the education and training she would need to support herself.

A jury trial commenced in November 2009. However, a mistrial was declared after a witness called by Rodriguez volunteered information that had been ruled inadmissible in a motion in limine. The trial was rescheduled, but the trial court specifically prohibited additional discovery.

When the second trial commenced in November 2010, the trial court concluded that its order prohibiting additional discovery had been erroneous. It then gave the parties the option of proceeding to trial or continuing the trial and conducting additional discovery. Rodriguez elected to continue the trial. This decision started in motion the following events, which are chronicled in the record before us.

On December 17, 2010, Brill served on Rodriguez a set of special interrogatories, commonly referred to as contention interrogatories, asking Rodriguez to state all facts that supported the contentions in her complaint, name all the individuals who could testify about those facts, and identify the documents that supported those contentions. At the same time, Brill also served on Rodriguez a request for production of documents seeking the documents that supported her contentions.

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On January 19, 2011, Brill’s counsel granted Rodriguez an extension to January 31, 2011, to respond to these discovery requests, which was confirmed by a letter dated January 20, 2011. Another extension was granted to February 23, 2011.

Rodriguez failed to respond to the discovery requests and on March 7, 2011, Brill filed a motion to compel responses to both requests (hereafter the motion to compel), with a hearing scheduled for April 4, 2011.

Rodriquez did not oppose the motion to compel, nor did she appear at the hearing. The trial court granted the motion and ordered Rodriguez to serve responses, without objection, within 10 days of service of the notice of the order. The notice of order was served on April 4, 2011.

Rodriguez did not respond to this order and on April 18, 2011, Brill filed a motion seeking either evidentiary sanctions or dismissal of the action (hereafter motion for dismissal) as a sanction for Rodriguez’s failure to respond to the discovery requests and failure to comply with the order of the trial court. A hearing was set for May 11, 2011.

Instead of filing an opposition to the motion for dismissal, Rodriguez filed a document entitled “Notice of Motion and Motion in Opposition to Defendant’s Motion for Dismissal and/or Evidentiary Sanctions, ” seeking relief under section 473(b), which apparently was treated by all parties as an opposition to Brill’s motion. Brill filed a timely reply. The day before the May 11 hearing, after normal office hours, Rodriguez served a proposed response to the interrogatories (via e-mail), but failed to respond in any manner to the request for production of documents. Counsel for both parties attended the hearing. The matter was taken under submission.

On May 16, 2011, the trial court granted the motion for dismissal and ordered the complaint stricken as a sanction against Rodriguez for failing to respond to discovery. Judgment was entered accordingly.

On or about July 13, 2011, Rodriguez filed a motion for relief from the judgment pursuant to section 473(b) (hereafter motion for relief), asserting that the failure to respond to the discovery and the trial court’s order dismissing the action was the result of the neglect of her attorney. Plaintiff’s papers included a declaration of her counsel acknowledging his negligence. Brill opposed the motion, arguing that plaintiff’s counsel never made any “substantive admission of neglect.” Brill’s counsel’s opposing declaration focused on Plaintiff’s counsel’s inexcusable conduct, without mentioning any acts by Rodriquez, personally. Rodriguez filed an untimely reply and, the day before the August 10, 2011, hearing, served defense counsel with verified

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answers to the special interrogatories and a verified response to the request for production of documents.[3]

On August 10, 2011, the trial court held a hearing on the motion for relief. It accepted for consideration Rodriguez’s late filed reply but provided Brill an opportunity to file a response to the reply, without further hearing.

On October 13, 2011, Rodriguez filed a notice of appeal from “dismissal as discovery sanction under CCP 2023.030, constructive denial of [the] 7/15/2011 motion to vacate.”

On November 3, 2011, the trial court denied Rodriguez’s motion for relief from the judgment.

Remand and Subsequent Appeal

On February 1, 2013, this court filed an unpublished opinion in Rodriguez v. Brill, supra, F063770, which addressed two main issues. First, we concluded the trial court did not abuse its discretion in granting the terminating sanction and affirmed the judgment dismissing Rodriguez’s action. Second, we concluded the trial court lacked subject matter jurisdiction when it filed the November 3, 2011, order denying Rodriguez’s motion for relief, because that order came after Rodriguez had filed her notice of appeal. As a result, we concluded the order was void and remanded the matter for the trial court to consider and rule upon Rodriguez’s motion for relief pursuant to section 473(b).

On August 30, 2013, the trial court signed and filed an order prepared by defense counsel. The order stated: “Plaintiff’s Motion is denied.” It also ordered the entry of judgment in favor of Brill ...

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