Denton v. City of S.F.

• Decision Date: 30 October 2017
• Docket Number: A147384
• Citation: 16 Cal.App.5th 779,224 Cal.Rptr.3d 610
• Court: California Court of Appeals Court of Appeals
• Parties: Richard A. DENTON, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

16 Cal.App.5th 779

224 Cal.Rptr.3d 610

Richard A. DENTON, Plaintiff and Appellant,

v.CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

A147384

Court of Appeal, First District, Division 2, California.

Filed October 30, 2017

Gregory Thomas May, The Law Office of Greg May, P.O. Box 7027, Oxnard, CA 93031, for Plaintiff and Appellant.

Lisa B. Berkowitz, Office of the City Attorney, 1390 Market Street, 5th Floor, San Francisco, CA 94102-5408, Sara Jennifer Eisenberg, San Francisco City Attorney's Office, Fox Plaza, 1390 Market Street, 6th Floor, San Francisco, CA 94102, for Defendants and Respondents.

Richman, J.Plaintiff Richard Denton filed a lawsuit against defendants City and County of San Francisco, his employer, and John Doyle, his supervisor (when referred to collectively, defendants). Defendants filed a motion for summary judgment, and in the weeks leading up to the hearing on the motion the parties engaged in settlement discussions. That led to a settlement—for $250,000—and Denton's then-counsel filed a notice of conditional settlement. A week later, after Denton had discharged his attorney, defendants' counsel successfully applied ex parte to have the settlement set aside—this, despite Denton twice assuring defendants' counsel that he was not backing out of the settlement. Four days later, defendants' summary judgment motion came on for hearing. Denton, appearing in propria persona, and insisting the parties had agreed to a settlement, requested a continuance so he could oppose the motion. The trial court denied the request and granted defendants' motion on the ground it was unopposed. Denton then filed a motion for new trial, which the trial court denied.

We reverse, concluding the trial court abused its discretion in denying Denton's request to continue the hearing on the summary judgment motion and in denying his motion for new trial.

BACKGROUND

In 2003, Denton began his employment with the City and County of San Francisco (City). He began in the Department of Emergency Management, and in 2009 moved to the San Francisco Public Utilities Commission. In September 2013, while still employed with the City, Denton filed a complaint against defendants.¹ The complaint was filed in propria persona.²

In February 2014, attorney Clarice Letizia substituted in on behalf of Denton.

In March 2014, the case was set for jury trial in March 2015.

In November 2014, Letizia filed a first amended complaint, the operative pleading here, alleging eight causes of action: workplace retaliation ( Lab. Code, § 1102.5 ); disability discrimination (disparate treatment); disability discrimination (failure to accommodate); disability discrimination (failure to engage in the interactive process); defamation; violation of the Confidentiality of Medical Information Act ( Civ. Code, § 56 et seq. ); hostile work environment harassment; and failure to prevent harassment, discrimination, or retaliation. The only causes of action alleged against Doyle were defamation and hostile work environment harassment.

Denton served various discovery, responses to which he claimed were inadequate, necessitating several motions. In February 2015, the trial date was continued to September 21, 2015, and then again, by stipulation, to October 26.

Meanwhile, on December 1, 2014, defendants filed a motion for summary judgment or, in the alternative, summary adjudication, set for hearing on February 19, 2015. The motion was accompanied by a 39-page supporting memorandum, a 13-page statement of claimed undisputed material facts, a request for judicial notice of six exhibits, and seven declarations.

Because discovery issues remained, hearing on the motion was continued several times, the last time to be heard on September 25. The effect of this was that Denton's opposition to the motion for summary judgment would be due September 11. Whether attorney Letizia was working on such opposition is not apparent from the record. What is apparent is that the parties agreed to attempt to settle. And did. Specifically:

On Friday, September 4, a mediation was held with Michael Young of Judicate West. No settlement was reached by the end of the day, but the parties agreed to continue negotiating by telephone with the mediator the next week. As defendants' own brief describes it: "The parties continued to negotiate throughout the week but had not reached a resolution by Thursday, September 10, 2014—the day before Denton's opposition to Defendants' motion for summary judgment was due. Defendants agreed to extend the time for Denton to file his opposition to Monday, September 14, 2015, to allow for additional time to reach settlement."

Defendants' attorney Lisa Berkowitz sent an e-mail confirming this, "in the hope that the parties could reach a resolution before that time." Or, as Denton's attorney Letizia confirmed in her e-mail on the morning of September 10: "This will confirm that you will not object to my filing the Opposition to Your Motion for Summary Judgment on Monday, 9-14-15, instead of tomorrow 9-11-15, so that we can continue our efforts to settle the case today."

Those efforts proved fruitful, and on September 11, mediator Young informed defendants' attorney Berkowitz that agreement had been reached. And on September 14, Denton's attorney Letizia filed a notice of conditional settlement. Again, we quote defendants' description of the state of affairs as of this time: the "Board of Supervisors and Public Utilities Commission had not yet approved the settlement, nor had the parties reduced the terms of settlement to writing. Defendants, however, believed that there was agreement as to all material terms."

Very early on the morning of September 16, Denton discharged attorney Letizia. As Denton described it, "I discharged my attorney, Clarice Letizia, for refusing to withdraw the 998 offers that were still pending in addition to the conditional settlement, provided her with a signed and dated substitution of attorney form, and instructed her not to perform any further work on my case, and to have no further contact with any of the parties associated with the case."

Later that day, Denton signed a notice of substitution of attorneys for Letizia to sign and file with the trial court, substituting himself in place of Letizia. As will be seen, Letizia did not file the substitution until September 21.

At 7:49 a.m. on September 16, less than hour after discharging Letizia, Denton sent an e-mail to defendants' attorney Berkowitz. It read in its entirety as follows:

"This email is to inform you that Clarice Letizia no longer represents me in any legal matters effective 6:51 am this morning, and has been instructed not to have any further contact with you or your clients. If Ms. Letizia has contacted you or your clients since 6:51 a.m., or makes any future contacts, please let me know.

"Additionally, Ms. Letizia informs me she made two 998 settlement offers, one to CCSF and one to Mr. Doyle. So that no confusion about their status remains I'm taking this opportunity to state that any and all CCP 998 settlements [sic ] offers to date are withdrawn if not already withdrawn.

"It is my understanding Ms. Letizia has sent at least one other settlement offer and I only just learned she has filed a conditional Notice of Settlement form CM-200. I will contact you later about these developments."

At 11:12 a.m. the next day, September 17, Denton sent another e-mail to Berkowitz. It read as follows: "Dear Ms. Berkowitz, [¶] Because of recent communications I received from Ms. Letizia, it would appear there will be a delay in filing and serving the form CM-050 notification of attorney substitution. So I just wanted to take this opportunity to reaffirm that I have terminated Ms. Letizia's representation as of 6:51 a.m. on 09/16/05; that I am the Plaintiff in pro per for my case; and that any communications from Ms. Letizia you have received, or may receive involving my case are to be ignored. If there have been any communications from her on my matter, please let me know."

Eighteen minutes later, Berkowitz e-mailed back:

"We (meaning the City defendants and you) had a settlement agreement. My understanding from the mediator is that you agreed to that settlement.

You are taking now [sic ] backing out of the agreement for reasons that you have not shared with me. Is this correct?

"If so, you or your lawyer need to immediately rescind the Notice of Settlement with the Court. Please be advised that I will be requesting from the Court that my summary judgment be heard as scheduled next week, and the trial date proceed as scheduled. You and Ms. Letizia will be cc-d on any such correspondence/filings.

"I am cc-ing Ms. Letizia until I get a substitution form from you."

Denton responded within an hour: "Ms. Letizia has not as yet been provided me [sic ] with a copy of the offer to settle you refer to. It would expedite matters if you could provide me with a copy (email would be fine)."

Berkowitz replied immediately, the text of her e-mail reading as follows: "The proposed settlement amount is the agreed upon amount reached with the mediator's help via telephone to both lawyers in the days following the mediation. It is not in writing, except as confirmed by the mediator by email to the lawyers on 9/11/15. It is $250,000, inclusive of attorneys fees, total, subject to approval by the SF Board of Supervisors and the PUC Commission in exchange for a full release of all claims, as set forth in the City's standard settlement agreement. I was in the process of finalizing the settlement and release to send to your attorney for her review when I got your email this week. It is my understanding that you approved and agreed to this settlement."

At 10:34 a.m. on Friday, September 18, Berkowitz e-mailed notice to Letizia and Denton that defendants would appear ex parte on the following Monday, a notice entitled "Application for an Order Vacating Notice of Settlement Filed by Plaintiff." The ex parte notice made no...