Sjp Ltd. Partnership v. City of Los Angeles

• Decision Date: 07 February 2006
• Docket Number: No. B180220.,B180220.
• Citation: 39 Cal.Rptr.3d 55,136 Cal.App.4th 511
• Court: California Court of Appeals Court of Appeals
• Parties: SJP LIMITED PARTNERSHIP et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

39 Cal.Rptr.3d 55

136 Cal.App.4th 511

SJP LIMITED PARTNERSHIP et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

No. B180220.

Court of Appeal, Second District, Division 2.

February 7, 2006.

Steven R. Friedman for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Kim Rodgers Westhoff, Deputy City Attorney, for Defendants and Respondents.

DOI TODD, J.

The question presented is whether an affidavit of fault signed by an attorney who represents a party in a bankruptcy proceeding but not in the civil action is competent to support a party's motion in the civil action for mandatory relief under Code of Civil Procedure¹ section 473, subdivision (b). We hold that such an affidavit is competent and reverse the judgment of dismissal as to that party. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants SJP Limited Partnership (SJP) and its general partner, George Justice (Justice), sued the City of Los Angeles and others,² alleging that they had wrongfully refused to extend building permits previously issued to appellants for the construction of a residence on SJP's property. Appellants sought a writ of mandate, as well as monetary damages and declaratory relief based on inverse condemnation. In June 2003, the trial court issued a peremptory writ of mandate, directing respondents to grant extensions of the building permits. However, the property was ultimately lost in a foreclosure proceeding.

In October 2003, appellants' attorney of record filed a motion to be relieved as counsel. On November 5, 2003 while the motion was pending, appellants' attorney notified the court that SJP had filed for bankruptcy protection. The trial court granted the motion to be relieved as counsel on November 14, 2003. In its written order, the court ordered the action stayed and set for January 21, 2004 a status conference and order to show cause (OSC) re SJP's need to be represented by a licensed attorney. The court also ordered appellants' relieved counsel to give notice, including notice to SJP's bankruptcy counsel.

After Justice appeared twice in pro. per. and obtained continuances, the OSC was calendared for May 11, 2004. Neither appellant appeared on that day. The court dismissed the complaint as to SJP for its failure to appear by counsel. Thereafter, the city filed a motion for judgment on the pleadings, arguing that Justice lacked standing to pursue the matter because the property at issue was owned by SJP.

The day before the hearing on the motion for judgment on the pleadings, both appellants filed a substitution of attorney. The new attorney appeared the next day at the hearing and orally requested that the case be reinstated as to SJP. The court denied the request with prejudice and granted the motion for judgment on the pleadings, dismissing the complaint as to Justice.

Appellants filed a motion for relief, asking the court to vacate the dismissals under the mandatory relief provisions of section 473, subdivision (b), or alternatively, under the court's inherent discretionary authority. The declaration of SJP's bankruptcy counsel, Stuart Koenig, was offered in support of the motion. Koenig declared that he was aware SJP's counsel in the state court action had withdrawn from representation and that Justice was having difficulty obtaining new counsel for SJP. Justice had informed him that the state court required SJP to appear at a hearing with new counsel. Koenig advised Justice that the state court could not dismiss SJP's case because to do so would violate the automatic stay Koenig believed was in place under section 362 of the United States Bankruptcy Code. The declaration stated: "Prior to the hearing that resulted in the dismissal of SJP as a party to this action, I did advise Mr. Justice that this Court could not and therefore would not act to dismiss SJP as a party. It is my understanding that Mr. Justice acted on this advice. I further recognize that, although I was not representing SJP in this State Court action, I should have appeared at the hearing and made certain that this Court was aware that SJP was in bankruptcy and that the automatic stay precluded this Court from taking any action against an asset of the bankruptcy estate, such as this claim. [¶] In light of the ruling by this Court that the automatic stay does not protect SJP from a dismissal as a party, my interpretation of the Bankruptcy Code and the application of the automatic stay to the facts of this case was incorrect, and therefore the dismissal of SJP was the result of my advice to Mr. Justice and mistaken interpretation of the Bankruptcy Code."

Justice submitted his own declaration in support of the motion, stating the following: "I acted in reliance upon Mr. Koenig and his firm. I truly did use all my best efforts to get another attorney for SJP and to comply with the Court's order, despite the fact that I was told by Mr. Koenig that the Court could take no action against SJP's claims." Justice explained that no attorneys he spoke to were willing to undertake representation until a lien filed by prior counsel was resolved. Justice also stated that he attempted to appear at the OSC hearing on May 11, 2004, but arrived late due to unforeseen traffic.

Respondents filed an opposition to the motion for relief, which was later stricken by the trial court for improper service. In reply, appellants submitted an additional declaration of Koenig, stating that he was not related to Justice and had no other relationship with Justice or SJP other than as counsel for SJP. Justice also submitted an additional declaration stating that prior to SJP's dismissal, he had confirmed Koenig's advice with another bankruptcy attorney, who was neither a friend nor relative.

The court denied the motion for relief, finding that the declaration of SJP's bankruptcy counsel did not qualify under section 473, subdivision (b) because he was not the attorney of record in the civil case. The court also declined to exercise its inherent discretionary authority to vacate the dismissals. Appellants have appealed from both judgments of dismissal and the order denying the motion for relief.³

DISCUSSION

Standard of Review

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. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th 603, 612, 107 Cal.Rptr.2d 489.) Where, as here, the applicability of the mandatory relief provision does not turn on disputed facts and presents a pure question of law, our review is de novo. (Ibid.)

An Attorney Affidavit of Fault is Competent if Signed by an Attorney Representing the Client in Another Action

The mandatory relief provision of section 473, subdivision (b) provides in relevant 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties."

"Prior to its amendment in 1988, subdivision (b) of section 473 provided solely for discretionary relief and did not include this provision for mandatory relief." (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927, 104 Cal.Rptr.2d 896.) The purpose of the mandatory relief provision was "`"`to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.' (Citations.)" (Citation.)'" (Ibid; Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at pp. 617-618, 107 Cal.Rptr.2d 489.) "Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable." (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033, 26 Cal.Rptr.3d 194.)

We look to the rules of statutory construction to determine whether the mandatory relief provision of section 473, subdivision (b) applies to the affidavit of an attorney who is not the attorney of record in the civil action. "The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] `In determining intent, we look first to the language of the statute, giving effect to its "plain meaning."'" (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.) "`If the language is unambiguous, our task is finished. [Citations.] If the language is ambiguous, we then examine the context of the statute, striving to harmonize the provision internally and with related statutes, and we may also consult extrinsic indicia of intent as contained in the legislative history of the statute.' [Citation.]" (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 142, 143, 114 Cal.Rptr.2d 93.)

We find nothing in the language of section 473, subdivision (b) to suggest that the Legislature intended the mandatory relief provision to be limited to those circumstances where the attorney affidavit of fault is signed by the defaulting or dismissed party's attorney of record in the civil case. While the...