Huh v. Wang

• Decision Date: 28 December 2007
• Docket Number: No. H030905.,H030905.
• Citation: 158 Cal.App.4th 1406,71 Cal.Rptr.3d 65
• Court: California Court of Appeals Court of Appeals
• Parties: Joe HUH, Plaintiff and Appellant, v. Guanyin J. WANG, et al., Defendants and Respondents.

71 Cal.Rptr.3d 65

158 Cal.App.4th 1406

Joe HUH, Plaintiff and Appellant, v. Guanyin J. WANG, et al., Defendants and Respondents.

No. H030905.

Court of Appeal, Sixth District.

December 28, 2007.

As Modified January 16, 2008.

Damian Rene Fernandez, Law OFC Damian R. Fernandez, Campbell, CA, for Plaintiff and Appellant.

Lawrence R. Jensen, San Jose, CA, for Defendant and Respondent.

McADAMS, J.

In this civil action, the appellant challenges an order denying his motion to set aside a summary judgment. For reasons explained below, we affirm.

BACKGROUND

This litigation grew out of a home remodel. Plaintiff and appellant Joe Huh, doing business as Omega Construction, entered into a contract with defendant and respondent Guanyin Wang to remodel respondent's residence.

After disputes arose, appellant filed this action in December 2004 for breach of contract and to enforce a mechanic's lien. The complaint names respondent as well as several other individuals.¹ All defendants answered, and respondent Wang cross-complained.

Discovery Order (April 2005)

In February 2005, respondent propounded discovery, including requests for admissions. When appellant failed to respond within the time allowed, respondent moved for an order deeming the matters admitted. That motion was granted in April 2005.

Appellant made two unsuccessful attempts to seek reconsideration of the discovery order: a motion presented in April 2005, which the clerk rejected for filing, and a motion filed in February 2006, which appellant later took off calendar.

Summary Judgment (March 2006)

Armed with the deemed admissions, respondent brought a motion for summary judgment in November 2005 regarding both the complaint and the cross-complaint. Hearing on the motion was scheduled for February 2006.

Appellant filed no written opposition. But on the day before the hearing, he applied ex parte for a continuance and for relief from his default in failing to oppose the motion, which he blamed on attorney calendaring error. He renewed that application on the day of the hearing. The court denied the applications.

The motion went forward (with no appearance by appellant), and summary judgment was granted on both the complaint and the cross-complaint, establishing the amounts owed. Respondent was found to be the prevailing party; he was later awarded fees and costs.

Judgment was entered in March 2006. Consistent with the order granting summary judgment, the judgment resolved the complaint, the cross-complaint, and the mechanic's lien. It established the amount due appellant ($56,830), which was far less than he had claimed ($133,253).

Respondent served notice of entry of the judgment in April 2006.

Attacks on the Judgment

Appellant attempted to overturn the judgment in several different ways.

In early June 2006, he filed a motion for new trial and for relief from judgment. Several days later, he filed a notice of appeal (H030296). In supplemental opposition papers, respondent asserted that the appeal divested the trial court of jurisdiction to act on appellant's motion for new trial. In late June 2006, appellant abandoned the appeal. As for the new trial motion, the hearing was continued to July 2006, then taken off calendar.

In late July 2006, appellant brought a motion to set aside the judgment under section 473, subdivision (b), of the Code of Civil Procedure.² The court denied the motion in September 2006.

This appeal from the September 2006 order ensued.

CONTENTIONS

Appellant contends that the trial court was required to grant him relief under section 473(b). Because his failure to oppose summary judgment was the result of attorney error, he asserts, the mandatory relief provisions of the statute apply. Alternatively, appellant argues, even under the discretionary provisions of the statute, the court abused its discretion in denying relief.

Respondent disputes both contentions on the merits. In addition, respondent characterizes the post-judgment motion at issue here as a defective attempt at reconsideration and he asks us to dismiss this appeal as an impermissible bid for review of its denial. We consider that issue at the threshold.

APPEALABILITY

We first address the threshold question of whether the challenged order is appealable, "since the question of appealability goes to our jurisdiction...." (Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720; accord, Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074.)

Appealability depends on the nature of the motion and order below. If this appeal is in fact taken from the denial of a motion for reconsideration, as respondent contends, there is a split of authority concerning appealability. (See Annette F. v. Sharon S, (2005) 130 Cal.App.4th 1448, 1458, 30 Cal.Rptr.3d 914; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81, 84 Cal.Rptr.2d 739.) But if the appeal is from the denial of a motion for relief under section 473, as it purports to be, the order is appealable. (Leader v. Health Industries of America, Inc. (2001) 89 Cal. App.4th 603, 611, 107 Cal.Rptr.2d 489; accord, SJP Ltd. Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516, fn. 3, 39 Cal.Rptr.3d 55.)

According to respondent, the post-judgment motion "should be treated on appeal as a motion for reconsideration or renewal of a previously denied application, within the meaning of CCP § 1008." In effect, respondent is asking us to look beyond the motion's label, both as given by appellant and as treated by the trial court. We decline to do so. (See Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1608-1609, 275 Cal.Rptr. 887.) We therefore accept the challenged order at face value, as the denial of a motion under section 473. As such, it is appealable. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 611, 107 Cal.Rptr.2d 489.)

DISCUSSION

Having concluded that the challenged order is appealable, we turn to the substantive issues. At issue here is the application of section 473(b), which empowers a court to grant relief in appropriate cases from attorney error. The statute contains both mandatory and discretionary provisions.

I. Mandatory Relief

In certain cases of attorney fault, section 473(b) requires the trial court to grant relief. The mandatory relief provision states in pertinent part: "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." (§ 473(b).)

A. Requirements

Procedurally, an application for mandatory relief "must be filed within six months of entry of judgment...." (Vandermoon v. Sanwong (2006) 142 Cal. App.4th 315, 320, 47 Cal.Rptr.3d 772, citing § 473(b).) In addition, the application must "be in proper form, and be accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (Ibid.) Furthermore, the defaulting party must submit sufficient admissible evidence that the default was actually caused by the attorney's error. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991, 40 Cal.Rptr.2d 727.) "If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief." (SJP Ltd. Partnership v. City of Los Angeles, supra, 136 Cal.App.4th at p. 516, 39 Cal.Rptr.3d 55.)

B. The Provision's Reach

In providing for mandatory relief, "the Legislature created a narrow exception to the discretionary relief provision for default judgments and dismissals." (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257, 121 Cal. Rptr.2d 187, 47 P.3d 1056 (Zamora).) By its express terms, the mandatory relief provision applies only to defaults, default judgments, and dismissals. (Vandermoon v. Sanwong, supra, 142 Cal.App.4th at p. 320, 47 Cal.Rptr.3d 772.) But some courts have construed the provision to reach other circumstances deemed to be procedural equivalents. (See, e.g., In re Marriage of Hock & Gordon-Hock (2000) 80 Cal. App.4th 1438, 1443, 96 Cal.Rptr.2d 546.) "The rationale of these cases is that, where there is no hearing on the merits, an attorney's neglect should not prevent the party from having his or her day in court." (Ibid.) Other courts have rejected that rationale, characterizing such decisions as "understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys, "which "have applied the mandatory provision far beyond the limited confines the Legislature intended." (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148, 114 Cal.Rptr.2d 93 (English).)

As more specifically relevant here, there is a split of authority on whether the mandatory provisions of section 473(b) "can provide relief from an order granting summary judgment." (8 Witkin, Cal. Procedure (2007 supp.) Attack on Judgment, § 196A, p. 230.) At least one case allowed statutory relief in this context, Avila v. Chua (1997) 57 Cal.App.4th 860, 868, 67 Cal.Rptr.2d 373. Other cases have rejected that view, declining to extend the mandatory provisions to the summary judgment context. (See, e.g., Prieto v. Loyola Marymount University (2005) 132 Cal. App.4th 290, 294, 33 Cal.Rptr.3d 639 [failure to oppose summary judgment motion]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681, 68 Cal.Rptr.2d 228 [defective opposition to summary judgment motion].)

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