McClain v. Kissler

• Decision Date: 29 August 2019
• Docket Number: A152352
• Citation: 39 Cal.App.5th 399,251 Cal.Rptr.3d 885
• Court: California Court of Appeals
• Parties: Katie MCCLAIN et al., Plaintiffs and Respondents, v. Karen KISSLER et al., Defendants and Appellants.

39 Cal.App.5th 399

251 Cal.Rptr.3d 885

Katie MCCLAIN et al., Plaintiffs and Respondents,

v.Karen KISSLER et al., Defendants and Appellants.

A152352

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

Filed August 29, 2019

Wykowski & Associates, Henry G. Wykowski, San Francisco, and Andrew F. Scher for Defendants and Appellants.

Katie McClain, in pro. per.; Jonothan Harrell, in pro. per.; Ball Law Corporation, Jonathan Ball, San Francisco, for Plaintiffs and Respondents.

STEWART, J.

PlaintiffsKatie McClain and Jonothan Harrell filed suit against defendantsKaren Kissler(both individually and doing business as Karen Kissler, Esquire and a medical marijuana collective called "Alternatives"), alleging defendants failed to pay them for their work growing marijuana as agreed under a contract between them.Although the summons and complaint had been served on defendants, and both before and after being served they actively participated in the case, defendants failed to file an answer or other responsive pleading.And though they claimed they had some basis to challenge the validity of service, they didn't file a motion to quash service of process either.In short, while they appeared in the case in various ways, as to the complaint they did nothing, assuming an ostrich-like posture.

About six months into the case, a case management conference (CMC) took place.The order entered immediately after the CMC is the focal point of this appeal.At the CMC, the trial court warned defendants their response to the complaint was long overdue and that to challenge the validity of service they had to file a motion to quash.In addition, because the California Rules of Court impose on every plaintiff a 10-day deadline to take a defendant's default on pain of possible sanctions and that deadline, too, had long since passed, the court ordered the plaintiffs to take the defendants' default by a specified date or else be sanctioned.The court memorialized its ruling in a minute order the defendants would later claim they misunderstood.Two weeks after the CMC, defendants still had neither answered nor moved to quash service, and plaintiffs, under threat of sanctions, took their default and sought entry of a default judgment.

In the meanwhile, Kissler was vigorously and successfully pursuing two casesshe had previously filed against plaintiffs, one an unlawful detainer action in which she obtained a writ of execution to remove plaintiffs from her property, and the other a breach of contract action that alleged plaintiffs, rather than Kissler et al., had breached the contract that is the subject of this action.But once the default was entered against Kissler in this case, Kissler obtained a discovery ruling in her separate contract action that, contrary to the allegations in her own complaint, deemed plaintiffs to have admitted Kissler was not a party to the contract at issue here, i.e., the very contract upon which she herself had brought suit and thereafter she obtained summary adjudication in her favor based on that deemed admission.

Also after the default was entered in this case, Kissler unleashed a torrent of filings in an effort to set the default aside, on a plethora of grounds—she believed defendants had not been properly served, thought they could raise jurisdictional challenges at any time, didn't know their participation in the case was a general appearance, and interpreted the CMC order imposing the deadline for plaintiffs to take defendants' default as an extension of time for defendants to file their already long overdue response to plaintiffs' complaint.Kissler also claimed Alternatives was in any event entitled to mandatory relief because she had eventually filed a declaration of fault.After multiple rounds of briefing and multiple hearings, the trial court issued an order denying relief from the default on every ground defendants had asserted.

Now, on appeal from the resulting default judgment, defendants raise two issues.

They contend the trial court abused its discretion in denying them discretionary relief from default under Code of Civil Procedure section 473, subdivision (b)( section 473(b) )¹ on the ground of their excusable mistake, because they misunderstood the court's minute order from the case management conference to mean it had given them until the 37-day deadline to file an answer or a motion challenging service of the summons and complaint.The entity, Alternatives, also contends that the court in any event had a mandatory duty under the same provision to grant it relief from default because its lawyer, Kissler, filed a declaration of fault.

We affirm.The trial court did not abuse its discretion in denying relief under section 473(b) for excusable mistake, finding defendants were not mistaken about the meaning of the court's minute order.The record here amply supports the trial court's findings that defendants' failure to respond to the complaint in this case was knowing and deliberate.And even if Kissler had been genuinely mistaken, the trial court did not abuse its discretion in finding any mistake was inexcusable.The record reflects that she was fully capable of ascertaining the rules and using them to her advantage when it suited her.Indeed, to interpret the discretionary relief provision of section 473, as defendants urge us, to require relief in circumstances like these would reward parties who ignore or flout the most basic rules governing civil actions, resulting in delay and congestion of the courts, and would undermine trial courts' ability to conduct proceedings in a way that is fair, efficient and orderly, and serves the interest of all litigants.There is, to be sure, a policy in favor of trying cases on their merits.And it is an important one.But there are other policies reflected in the requirement of section 473(b) that relief be granted only where a party has made an honest and reasonable mistake, policies implicating judicial efficiency, a fair legal process and timely access to the courts.If relief from default were required in a case like this, no case would merit denial of relief and the Legislature might as well make such relief mandatory in all circumstances.The Legislature has not chosen that path and for good reason.(SeeZamora v. Clayborn Contracting Group, Inc.(2002)28 Cal.4th 249, 258, 121 Cal.Rptr.2d 187, 47 P.3d 1056( Zamora )[" ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not ... excusable.To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice"].)Neither will we.

We also conclude that the trial court did not err in denying mandatory relief to Alternatives under section 473(b), because the court found it was "one and the same"party as Kissler, who is an attorney.The attorney declaration of fault she filed thus was of no legal effect for purposes of granting mandatory relief from default.

BACKGROUND

We begin by observing that the record provided by defendants on appeal is deficient and one-sided.It contains no pleadings, briefs or other filings between the date the amended complaint was filed in January 2016 and the date on which plaintiffs sought entry of default in June 2016.Further, it contains many gaps thereafter where pleadings and briefs are omitted.It leaves out, for example, the notice of pending action, or lis pendens, filed by plaintiffs and the defendants' motion to expunge the lis pendens.It also omits the proofs of service of the complaint or amended complaint (one cannot tell which) filed by plaintiffs and declarations plaintiffs filed in opposition to defendants' motions for relief from default.And defendants omitted reporters' transcripts of two of the three hearings on the motions at issue in this appeal.²To some extent we are able to assess what occurred in the case because, as required by rules 8.122(b)(1)and8.124(b)(1)(a) of the California Rules of Court, defendants included the register of actions in the appendix, which lists the many items that have been omitted.The statement of facts here is based on the register of actions where necessary.As we will discuss further, below, however, where omitted items are necessary to our review, our inability to conduct that review redounds to defendants' detriment.(SeeHearn v. Howard(2009)177 Cal.App.4th 1193, 1200–1201, 99 Cal.Rptr.3d 642( Hearn )[in connection with review of denial of relief under section 473"it is the appellant's burden to furnish a record adequate for review" and "[w]e must therefore presume that what occurred at [a hearing for which appellant has not furnished a reporter's transcript] supports the judgment"].)

I.Proceedings in This Action

In December 2015, plaintiffs sued Kissler, individually and doing business as "Karen Kissler, Esq." and "Alternatives."We refer to Kissler and her Esq. and Alternatives dbas as "defendants."Plaintiffs alleged Kissler breached a contract in which she retained them to raise marijuana plants at a property in Geyserville agreeing to pay them for raising and trimming the plants.Instead of paying for the plants as agreed, plaintiffs alleged defendants' agents came to the property without notice, removed all the plants and the equipment used to grow them and paid only $14,000 of the $158,500 they had promised to pay.They sought the difference as damages along with interest according to proof.A few weeks later, plaintiffs amended the complaint to add an allegation that Kissler listed some property in Guerneville for sale in violation of the fraudulent conveyance statute, Civil Code section 3439.04.

In the meanwhile, plaintiffs filed a notice of lis pendens and, on December 28, 2015, defendants moved to expunge the lis pendens.All of them were represented by Kissler, who is a practicing attorney.In connection with that motion, Kissler filed a...