Younessi v. Woolf, G051034

• Decision Date: 16 February 2016
• Docket Number: G051034
• Citation: 244 Cal.App.4th 1137,198 Cal.Rptr.3d 763
• Court: California Court of Appeals Court of Appeals
• Parties: Michael YOUNESSI et al., Plaintiffs and Respondents, v. Chaim J. WOOLF et al., Defendants and Appellants.

244 Cal.App.4th 1137

198 Cal.Rptr.3d 763

Michael YOUNESSI et al., Plaintiffs and Respondents,

v.Chaim J. WOOLF et al., Defendants and Appellants.

G051034

Court of Appeal, Fourth District, Division 3, California.

Filed February 16, 2016

Baker, Keener & Nahra, Mitchell F. Mulbarger, Los Angeles, and Ashley L. Arnett for Defendant and Appellant Chaim J. Woolf.

Nemecek & Cole, Jonathan B. Cole, Sherman Oaks, and Mark Schaeffer for Defendant and Appellant Steven K. Camhi.

Clifford Casey ; Byron & Edwards and Thomas W. Byron for Plaintiffs and Respondents.

OPINION

RYLAARSDAM, ACTING P.J.

Defendants Chaim J. Woolf and Steven K. Camhi appeal from an order granting plaintiffs' motion to set aside the dismissal of a legal malpractice action. (Code Civ. Proc., § 473, subd. (b) ; all undesignated statutory references are to this code.) The court entered the dismissal after plaintiffs Michael Younessi and Alea Investments, LLC failed to timely file an amended complaint in response to an order sustaining demurrers to the original complaint with leave to amend. Plaintiffs have filed motions to dismiss the appeal, for relief from default in failing to file a respondents' brief, and for judicial notice.

We deny plaintiffs' motions. The dismissal was in writing and signed by the trial court (§ 581d), rendering the order setting it aside appealable as a postjudgment order (§ 904.1, subd. (a)(2)). The declarations supporting the motion for relief from default in not timely filing a respondents' brief and the documents attached to the related judicial notice request fail to show good cause justifying relief from the extensive delay.

But we reluctantly affirm the trial court's order vacating the dismissal. While the evidence does not support granting relief for mistake, inadvertence, surprise, or excusable neglect, since the dismissal resulted from plaintiffs' newly retained attorney's failure to oppose the demurrers and timely file an amended complaint, plaintiffs are entitled to relief under section 473, subdivision (b)'s attorney-fault provision.

FACTS AND PROCEDURAL BACKGROUND

Defendants Camhi, Woolf, and Ronan Cohen are attorneys who represented plaintiffs in a prior civil action. That case resulted in a large judgment against plaintiffs. We affirmed the judgment in a prior appeal. (Diamond Enterprises, Ltd., LP. v. Younessi , 2015 WL 230405 (Jan. 16, 2015, G048000) [nonpub. opn.].)

Represented by attorney Robert E. Drescher, plaintiffs sued defendants, alleging the judgment in the Diamond Ente rprises action resulted from their failure to effectively represent them. The defendants separately demurred to the complaint and Camhi and Woolf also moved to strike portions of it. By stipulation, the trial court scheduled a consolidated hearing on the demurrers and motions for May 7, 2014. The court also set a case management conference on May 29.

Meanwhile, Camhi and Woolf served discovery requests on plaintiffs. Neither defendant received a response and each one filed a motion to compel compliance.

No opposition was filed to the demurrers or motions to strike. On May 1, Camhi served and filed a notice that he had not received any opposition to either his demurrer or motion to strike. Drescher also did not appear at the May 7 hearing. The trial court sustained the demurrers to each cause of action with 10 days leave to amend. Camhi served notice of the ruling on all parties the same day.

The amended complaint was due May 22. At 11:55 p.m. that day, attorney George Wass electronically filed a substitution of attorney, replacing Drescher as plaintiffs' attorney of record. The substitution of attorney form reflects Drescher signed it on March 31, but Wass did not sign it until May 20. Despite an attached proof of service showing Wass mailed copies of the document to each of the defendants, Camhi and Woolf denied knowing of the change of attorney until they received plaintiffs' motion to set aside the dismissal.

On May 27, Camhi filed an ex parte application to dismiss the action because plaintiffs failed to timely file an amended complaint. The register of actions reflects the trial court heard the application on the morning of May 28 and granted it, signing an order dismissing the complaint with prejudice as to all three defendants. The record reflects that Wass electronically filed an amended complaint on behalf of plaintiffs at 3:56 p.m. the same day. Given the fact this pleading was filed after entry of the dismissal, the court and parties apparently treated its filing as ineffectual.

On July 17, plaintiffs moved to set aside the dismissal. The motion sought relief under section 473, subdivision (b), on grounds of excusable neglect and attorney fault. Wass submitted a declaration supporting it.

According to Wass, in March he agreed to represent plaintiffs in this action. Wass admitted that he received the substitution of attorney form signed by Drescher on April 1, but claimed he forgot to sign it because he was preparing for trial.

Wass denied knowing about the pending demurrers and motions to strike, asserting, "Drescher did not mention [them]," and his office "apparently ... missed" the entries for these pleadings when reviewing the register of actions. But Wass did acknowledge learning of the pending discovery motions. In mid-April, he attempted to discuss them with Woolf's attorney. Opposing counsel told Wass that he could not do so "until he received the Substitution of Attorney." According to Wass, he again failed to file the substitution of attorney because he "got distracted." Wass claimed he finally learned about the demurrers and the court's ruling which allowed leave to amend in mid-May, and "just assumed we got 30 days" to file an amended complaint.

Wass appeared on May 29 for the case management conference. At that time, he learned "the case had already been called, and was Dismissed." Wass acknowledged he was "at fault for not timely filing the First Amended Complaint."

All three defendants opposed the motion, but the court granted it. When asked the basis for the ruling, the trial judge stated she relied on section 473, subdivision (b)'s "discretionary" provision.

DISCUSSION

1. Motion to Dismiss Appeal

Plaintiffs have moved to dismiss this appeal on the ground the order vacating the dismissal of the action is not an appealable ruling. Their motion lacks merit.

Section 581d declares, "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes." (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1120, fn. 1, 135 Cal.Rptr.2d 790 ["minute order, which was in writing, signed by the court, and filed in the action" treated "as an appealable judgment"].) Consequently, an order vacating a dismissal is appealable where "the underlying judgment sought to be vacated is an appealable final judgment." (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628, 5 Cal.Rptr.2d 742.)

The trial court dismissed this action in a written order signed by it. Thus, the ruling was an appealable judgment, and the order granting plaintiffs' motion to set it aside under section 473 was appealable as one "made after judgment." (§ 904.1, subd. (a)(2); 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 194, pp. 271–272.) We deny plaintiffs' motion to dismiss.

2. Motions for Relief from Default and for Judicial Notice

The motion for relief from default in failing to timely file a respondents' brief conforms to a familiar theme in this case; plaintiffs' representation by attorneys who have difficulty timely filing documents.

Respondents' appellate brief was due on or about May 5, 2015. No brief was filed, nor was there a request for additional time to submit one.

On December 4, plaintiffs filed the present motion. It is supported by declarations from Younessi and Clifford Casey, one of plaintiffs' current attorneys, and documents attached to the related motion for judicial notice. Plaintiffs' argument is premised on a purportedly unfulfilled promise by Wass to prepare the brief.

Younessi claims that on August 21, 2015, he learned Wass had failed to timely file the respondents' brief. He immediately confronted Wass about the default. Casey acknowledges he was present at the August 21 meeting and that Wass admitted failing to timely file the respondents' brief.

One month later, on September 18, Casey substituted into the case as plaintiffs' attorney of record. The same day, Casey filed the motion to dismiss this appeal under his own signature. But according to Casey, Wass actually prepared the motion. Casey also acknowledges he waited over six weeks for Wass to prepare the respondents' brief, which, "despite ... repeated promises," Wass failed to fulfill.

Another two weeks passed before plaintiffs hired attorney Thomas W. Byron who prepared the current motion for relief from default. The motion and its supporting declarations were signed on or before November 19. While the attached proof of service states the motion was mailed to this court and opposing parties the next day, it was not filed until December 4, less than two weeks before oral argument.

This court has the discretion to grant relief from a party's failure to timely file a brief "[f]or good cause." (Cal. Rules of Court, rule 8.60(d).) However that phrase may be defined (see Cal. Rules of Court, rule 8.63 ), plaintiffs' request does not qualify. The motion and its supporting declarations reflect the legal representation provided by plaintiffs' current attorneys is little better than that provided by Wass. Casey admittedly knew in August that Wass had failed to timely file the respondents' brief, but when he substituted in as plaintiffs' counsel a month later, he still took no action to seek relief from this default. Rather, Casey waited another month and a half for Wass to prepare the brief. Even then, nothing was done for another two weeks when plaintiffs associated in...