Vaccaro v. Kaiman
| Decision Date | 30 April 1998 |
| Docket Number | Nos. B108182,B111535 and B112258,s. B108182 |
| Citation | 73 Cal.Rptr.2d 829,63 Cal.App.4th 761 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 98 Cal. Daily Op. Serv. 3270, 98 Daily Journal D.A.R. 4494 Andra M. VACCARO, Plaintiff and Appellant, v. Barry KAIMAN et al., Defendants and Respondents. |
Cindra M. Vaccaro, in pro. per., Douglas Caiafa, Los Angeles, for Plaintiff and Appellant.
Lewis, D'Amato, Brisbois & Bisgaard LLP, Joseph K. Hegedus, Gordon J. Calhoun, and Douglas R. Irvine, Los Angeles, for Defendants and Respondents.
Plaintiff and appellant Andra M. Vaccaro brought this action for legal malpractice against defendants and respondents Barry Kaiman and the law firm of Lewis, D'Amato, Brisbois & Bisgaard. Plaintiff's attorney neglected to sign the first amended complaint as required by Code of Civil Procedure section 128.7, subdivision (a). 1 Defendants moved, pursuant to section 436, subdivision (b), that unless the first amended complaint was signed by the time of the hearing on defendants' motion, the first amended complaint should be stricken in its entirety on the ground it was not filed in conformity with the laws of this state. Although plaintiff's attorney did sign and file a copy of the first amended complaint before the hearing, the court struck the first amended complaint, without leave to amend, on the ground the attorney had not acted "promptly." In the same breath, without prior request by defendants or prior notice by the court, the court dismissed plaintiff's action with prejudice. The court thereafter denied plaintiff's motions for reconsideration (§ 1008) and relief from default (§ 473). Thereafter, defendants moved that, as a "sanction" under section 128.7, they be awarded $38,236.50, which represented their entire "attorney fees" in defending the action from its commencement. The trial court granted defendants' motion. Plaintiff appeals from the orders which dismissed the action, denied reconsideration and relief from default, and granted sanctions of $38,236.50. We issued a writ of supersedeas staying enforcement of the judgment and postjudgment order imposing sanctions.
We reverse. The trial court abused its discretion in striking the first amended complaint without leave to amend and dismissing the action without prior request or notice. In any event, the mandatory provision of section 473 required the court to set aside the order of dismissal when plaintiff's counsel admitted his neglect. The sanction award must also be reversed, because it is based on the prior orders.
Plaintiff Vaccaro is herself an attorney. Defendants were previously retained by Vacarro's malpractice insurance carrier to defend a prior action against plaintiff, Barrios v. Vaccaro (Super.Ct.L.A.County, 1993, No. BC082084). The theory of plaintiff's present action is that although the Barrios action was settled by the carrier, defendants violated various promises they made to plaintiff concerning how the Barrios matter would be defended, and breached plaintiff's right to privacy by disclosing confidential matters to third parties, all to plaintiff's damage.
The original complaint was filed April 25, 1996. It was signed and verified by plaintiff personally, and was signed by plaintiff's then attorney of record, Geoffrey C. Mousseau. A first amended complaint was filed July 11, 1996. It listed Mousseau as attorney. It was signed and verified by plaintiff personally, but was not signed by Mousseau. Defendants' attorney Douglas R. Irvine sent a letter to Mousseau July 12, 1996, noting that defendants had been served with an unsigned copy and requesting clarification whether the first amended complaint had been filed. Irvine received no response.
Plaintiff filed a substitution of attorney; the filing date is illegible in the joint appendix on appeal but inferably was July 30, 1996. Mousseau substituted out as plaintiff's attorney, and Fred Rucker substituted in as plaintiff's attorney.
On August 12, 1996, defendants filed a demurrer to the first amended complaint (asserting failure to state a cause of action) and a motion to strike the first amended complaint in its entirety and in certain particulars. The motion to strike the first amended complaint in its entirety was based upon the fact it was not signed by plaintiff's former attorney of record or plaintiff's new attorney of record.
The substantive law cited for the motion to strike was section 128.7, subdivision (a), which provides,
The motion was based procedurally on sections 435 and 436, which authorize the court upon motion to strike, "upon terms it deems proper," a complaint which is "not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (§ 436, subd. (b).)
Defendants' memorandum of points and authorities in support of the motion to strike stated, "If the first amended complaint has not been signed by the time of the hearing on this motion [which was then set for September 9, 1996], it should be stricken in its entirety."
The parties' attorneys thereafter met and conferred upon numerous discovery and pleading issues. On September 6, 1996, they filed a stipulation to continue, until October 2, 1996, the hearings on plaintiff's five discovery motions and defendants' demurrer and motion to strike. On September 30, 1996, they filed another stipulation to continue until October 21, 1996, the hearings on plaintiff's five discovery motions and defendants' demurrer and motion to strike. The court on September 30, 1996, approved the continuance to October 21, 1996.
The attorneys also stipulated to a briefing schedule. It provided that plaintiff would have until Tuesday, October 15, 1996, to submit opposition to the motion to strike. This was not approved by the court. It appears both counsel assumed the briefing schedule was acceptable to the court and did not know it was not.
According to plaintiff's counsel Rucker, he told defendants' counsel Irvine during the meet and confer session of September 30, 1996, that he would file a signed copy of the first amended complaint at the time he filed opposition to the demurrer and motion to strike, and "[d]efendants agreed that this was acceptable, so long as the signed pleading was, in fact, filed with the Opposition." This was denied by Irvine who declared that the subject of signing the first amended complaint was never discussed.
Without the court's approval of the stipulated late briefing, plaintiff's opposition to the motion to strike was due five court days before the Monday, October 21, 1996, hearing (§ 1005, subd. (b), rule 317(a), Cal. Rules of Court), which was Friday, October 11, 1996 (Monday, October 14 being a holiday). On Wednesday, October 16, 1996 (three days late by statute and court rule and one day late even under the stipulation), plaintiff's counsel Rucker filed a copy of (Mousseau's) first amended complaint, signed by Rucker in the place where Mousseau had neglected to sign. His memorandum of points and authorities At the commencement of the October 21, 1996, hearing on the motions the court announced, "Case dismissed." Rucker asked, "may we have leave to file a signed pleading," to which the court responded, "Dismissed with prejudice." Rucker pointed out that he had filed a signed pleading. The court responded that it was filed too late: the court never approved a late filing, the opposition was due October 11, the court would disregard opposition filed beyond the deadline set by section 1005, and under Los Angeles local rule 9.15, the failure to file timely opposition supports an inference a motion is meritorious. Beyond that, the court cited the requirement of section 128.7, subdivision (a) that "An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." The court concluded Rucker had not acted promptly following the filing of the motion to strike in August.
commented,
On November 20, 1996, the court filed an order striking the first amended complaint and dismissing the action with prejudice, and a judgment of dismissal.
On November 1, 1996, plaintiff filed a motion for reconsideration and motion for relief from default, which motions came on for hearing November 25, 1996. The motion for reconsideration was based on the theory that the court was unaware at the time of the ruling that a signed pleading had been filed before the hearing. The court clarified that it was previously aware the signed pleading had been filed; the court had ruled based on its being filed late; hence the motion for reconsideration did not set forth a new and different set of facts. The motion for relief from default was based on the declarations of Rucker and plaintiff, which placed responsibility solely on Rucker for his failure to sign the pleading more promptly. Rucker declared, and plaintiff corroborated, that as soon as Rucker received the motion to strike in August, plaintiff instructed Rucker to file a signed copy immediately, and he told plainti...
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Hoover v. West Virginia Bd. of Medicine, 31576.
...at time of original filing when signed promptly); Williams v. Frame, 145 F.R.D. 65, 66 (E.D.Pa.1992) (same); Vaccaro v. Kaiman, 63 Cal.App.4th 761, 768, 73 Cal.Rptr.2d 829 (1998) ("When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend......
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In re Marriage of Hock & Gordon-Hock
...used for relief under circumstances, which have been determined to be the procedural equivalent of a default. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 771, 73 Cal.Rptr.2d 829) [uncontradicted affidavit of counsel and plaintiff that pleading was not signed solely because of attorney's d......
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Cld Const., Inc. v. City of San Ramon
...only upon terms the court deems proper (§ 436, subd. (b)), that is, terms that are just. (§ 472a, subd. (c); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768, 73 Cal.Rptr.2d 829.) It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opport......
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Bd. of Trustees v. Superior Court, H030451.
...belatedly) to sign and thereby attest to the arguable legal and evidentiary merit of the allegations." (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768-769, 73 Cal. Rptr.2d 829.) In accordance with the above authorities, the appellate court in CLD Construction, Inc. v. City of San Ramon (2......