Carroll v. Abbott Laboratories, Inc.

• Decision Date: 10 December 1982
• Citation: 32 Cal.3d 892,187 Cal.Rptr. 592,654 P.2d 775
• Court: California Supreme Court
• Parties: , 654 P.2d 775 James Douglas CARROLL, a Minor, etc., Plaintiff and Respondent, v. ABBOTT LABORATORIES, INC., Defendant and Appellant. L.A. 31481.

Page 592

187 Cal.Rptr. 592

32 Cal.3d 892, 654 P.2d 775

James Douglas CARROLL, a Minor, etc., Plaintiff and Respondent, v. ABBOTT LABORATORIES, INC., Defendant and Appellant.

L.A. 31481.

Supreme Court of California In Bank.

Dec. 10, 1982.

Overton, Lyman & Prince, Laurence H. Schnabel and Jon P. Kardassakis, Los Angeles, for defendant and appellant.

Lee W. Landrum, Los Angeles, for plaintiff and respondent.

KAUS, Justice.

I

Appeal from orders made pursuant to section 473 of the Code of Civil Procedure, ¹ vacating and setting aside a judgment of dismissal. (Code Civ.Proc., § 904.1, subd. (b).)

This is the problem: Section 473 of the Code of Civil Procedure permits relief for "excusable" neglect. The word "excusable" means just that: inexcusable neglect prevents relief. (Luz v. Lopes (1960) 55 Cal.2d 54, 65, 10 Cal.Rptr. 161, 358 P.2d 289; Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 528-533, 190 P.2d 593.) Further, as a general rule an attorney's inexcusable neglect is chargeable to the client. (Benjamin v. Dalmo Mfg. Co., supra, at p. 532, 190 P.2d 593.) Yet, starting with Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388-395, 38 Cal.Rptr. 693, there has developed a line of cases which has prompted one noted commentator to protest that "the more gross and inexcusable the neglect of the attorney, the more certain is the party of getting relief." (5 Witkin, Cal. Procedure (2d ed 1971) Attack on Judgment in Trial Court, § 147, p. 3721.) This opinion attempts to solve the apparent paradox.

II

Involved in the proceedings we are about to discuss are Monica Denise Carroll, the mother and guardian ad litem of the minor plaintiff James Douglas Carroll, plaintiff's legal representative (counsel) and defendant Abbott Laboratories, Inc. (Abbott).

On December 11, 1975, counsel, on behalf of James, filed a complaint against Abbott. It alleged that James, a minor, suffered brain damage when Monica, while pregnant with James, ingested Nembutal, a drug manufactured by Abbott.

In preparation for trial, Abbott served on counsel a notice requesting production of three sets of documents: (1) medical records concerning James' treatment at the Seventh Day Adventist Hospital in Saigon, Vietnam; (2) medical records concerning James' treatment at a military hospital in Vietnam; and (3) a "baby book" kept by Monica that detailed James' first eight years. The basis for the request was Monica's deposition testimony indicating that these documents were in her possession. Following service of the notice on February 26, 1979, counsel requested and was granted four extensions of time, but by November 7 the documents had still not been produced. Abbott then filed a motion to compel production. That motion was granted--counsel had not appeared at the hearing--and notice of the court's ruling was served on him. When counsel failed to comply with the court order, Abbott went to court a second time, seeking a dismissal of the case for failure to comply with the court order or, alternatively, a second order compelling production. ² On January 11, 1980, the court granted a second motion to compel production and continued the motion to dismiss. Production was still not made, however, and on January 24, at a hearing at which there was again no appearance for plaintiff, the court dismissed James' action as to Abbott.

On January 29, counsel filed a motion for relief from the dismissal under Code of Civil Procedure section 473. In his declaration, he asserted that none of the requested documents were in his or Monica's possession. He also admitted that he had not been in touch with his client since July 23, 1979. Counsel did appear at a February 14 hearing and urged his own motion. The trial court granted the motion to vacate the dismissal on condition that counsel and Monica file declarations stating that they did not know the whereabouts of the requested documents. When they failed to fulfill that condition, the motion to vacate the dismissal was taken off calendar.

Counsel filed a second motion for relief under section 473 on April 3, 1980. In his newest declaration, he asserted that on February 15 he had been informed by Monica that she did, after all, possess the requested documents. In fact, Monica told counsel that at one point between July and August 1979, she had actually turned the documents over to him. Counsel asserted, however, that some time thereafter his office returned the documents to Monica, though he himself had "no recollection of this rather disturbing event." Counsel's declaration in support of the motion also contains certain allegations which, if believed, might have supported a finding that the January 24 dismissal had been the result of a mistake induced by certain representations of Abbott's attorney. The allegations were denied by the latter. ³ This second motion for relief was submitted, and on May 23, 1980, the trial court indicated it would grant it. The minute order of May 23 is quoted below. ⁴ Two features of that ruling should be noted: first, the court found, without any ifs or buts, that counsel had been "grossly negligent in the representation of plaintiff's interests"; second, the court set the dismissal aside only because it felt that that penalty had been inappropriately harsh. ⁵ In any event, a month later, on June 25, the court found that counsel had substantially complied with the court order. It then granted the motion to be relieved from the judgment of dismissal. ⁶

III

It is well established that "a motion for relief under [Code of Civil Procedure] section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal." (Martin v. Cook (1977) 68 Cal.App.3d 799, 807, 137 Cal.Rptr. 434; Coyne v. Krempels (1950) 36 Cal.2d 257, 263, 223 P.2d 244.) That discretion, however, " 'is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 526, 190 P.2d 593; Bailey v. Taaffe (1866) 29 Cal. 423, 424.)

In general, a party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable "because the negligence of the attorney ... is imputed to his client and may not be offered by the latter as a basis for relief." (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301, 93 Cal.Rptr. 61.) The client's redress for inexcusable neglect by counsel is, of course, an action for malpractice. (Martin v. Cook (1977) 68 Cal.App.3d 799, 809, 137 Cal.Rptr. 434; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 353, 66 Cal.Rptr. 240.) ⁷

However, an exception to this general rule has developed. "[E]xcepted from the rule are those instances where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. [Citations omitted.] The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client." (Italics added.) (Buckert v. Briggs, supra, 15 Cal.App.3d at p. 301, 93 Cal.Rptr. 61; see also, Orange Empire Nat. Bank v. Kirk, supra, 259 Cal.App.2d at p. 353, 66 Cal.Rptr. 240; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 391, 38 Cal.Rptr. 693.) Courts applying that exception have emphasized that "[a]n attorney's authority to bind his client does not permit him to impair or destroy the client's cause of action or defense." (Orange Empire Nat. Bank, supra, 259 Cal.App.2d at p. 353, 66 Cal.Rptr. 240; Daley v. County of Butte, supra, 227 Cal.App.2d at p. 391, 38 Cal.Rptr. 693.)

In spite of half-hearted attempts to argue that his counsel's neglect was excusable, plaintiff appears to appreciate that his best hope for an affirmance lies in resort to the Daley line of cases: he is, after all, saddled with an amply supported if not compelled trial court finding that counsel's neglect was "gross." The issue, therefore, becomes whether counsel's conduct amounted to "positive misconduct" by which plaintiff was "effectually and unknowingly deprived of representation." (Daley v. County of Butte, supra, 227 Cal.App.2d at p. 391, 38 Cal.Rptr. 693.)

A brief look at the factual circumstances in the cases that fall within the "positive misconduct" exception will make it clear that plaintiff's hopes are misplaced. In Daley, plaintiff's attorney failed to serve plaintiff's son in order to join him as a party, which resulted in repeated postponement of trial. He failed to appear at successive pretrial conferences and failed to communicate with court, client or other counsel. Worst of all, he did not sign a substitution of attorney for more than five months, apparently refusing either to get out of the case or to proceed with it. Given all these circumstances, the court concluded that plaintiff "had legal representation only in a nominal and technical sense." (Daley v. County of Butte, supra, 227 Cal.App.2d at p. 392, 38 Cal.Rptr. 693.)

In Orange Empire the attorney, whose client was sued on a guaranty, repeatedly assured the client that he would interpose the defense that the client's signature on the guaranty was a forgery. The attorney failed to file an appearance in the case, and despite advance notice of the trial date, he failed to appear for trial which resulted in a substantial judgment. Throughout this period, the attorney had been contacted many times by his client and had continued to assure him that he...