Licudine v. Gallegos

Filed 8/24/07 Licudine v. Gallegos CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Christopher Yeager, Judge. Affirmed.

Richard Licudine appeals after the court denied his motion to set aside the dismissal of his lawsuit against Eucalia and Roy Gallegos. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

In January 2004, Licudine filed a personal injury action against Eucalia and Roy Gallegos, arising from a January 2002 automobile accident. The court notified Licudine that a case management conference was scheduled for June 29, 2004, and that Licudine must file a case management statement at least 15 days before the conference.

On June 29, Licudine's counsel failed to appear at the case management conference. On that date, the court issued an order to show cause why the case should not be dismissed for failure to appear at the case management conference, failure to file a case management statement, and failure to serve defendants. The court scheduled the order to show cause hearing for July 29, 2004.

On July 29, Licudine appeared at the order to show cause hearing. Based on problems with the service, the court (Judge Barrett Foerster) continued the dismissal hearing to October 27, 2004. The court orally notified Licudine's counsel of the October 27 continued hearing date. Later that day, Licudine filed a proof of service on defendants.

The next day, defense counsel served Licudine's counsel with defendants' answer to the complaint. During the next few months, Licudine responded to written discovery propounded by defendants.

On the date scheduled for the October 27 order to show cause hearing, none of the parties or their counsel appeared. The court (Judge Foerster) thus dismissed the case without prejudice. The dismissal notice was not served on the parties. Licudine made no attempt to conduct discovery after that date.

Three months later, on January 24, 2005, defense counsel's office contacted the court to inquire whether a trial date had been set, and learned the matter had been dismissed by the court on October 27. Defense counsel informed his clients of the dismissal. During the next year, defense counsel did not receive any communication from Licudine's counsel regarding the case.

Approximately 14 months after the dismissal, on January 17, 2006, Licudine's counsel attempted to obtain a copy of an at-issue memorandum and learned the case had been dismissed.

Approximately four and one-half months later, on June 9, 2006, Licudine moved to set aside the dismissal under Code of Civil Procedure section 473 (section 473). In support, Licudine filed his attorney's declaration stating: "[A]t no time subsequent to the hearing on July 29, 2004, did I receive notice . . . of any further court hearings. [] [A]t no time prior to January 17, 2006, did I have notice . . . that the case had been dismissed without prejudice on or about October 27, 2004. [] [A]fter the answer of the defendants, the parties engaged in discovery, including answers to interrogatories and requests for production of documents. [] [D]ue to excusable neglect, the case was not calendared for any further activity after the discovery was completed. [] [O]n or about January 17, 2006, I requested my attorney service to obtain a copy of the At Issue Memorandum so that I could bring this case to trial, and for a copy of the case docket. [] [T]he service faxed me a copy of the court docket on January 19, 2006, at which point, I discovered that a Dismissal without prejudice had been entered in this case. [] [T]he failure to appear in this case was due to lack of notice of any such hearing or mistake, inadvertence, surprise and/or excusable neglect, as was allowing the entry of the Dismissal without Prejudice. [] [G]ranting the request to set aside the Dismissal will not prejudice any party and . . . the trial court can be had before five years from the injury date."

The Gallegoses opposed the motion, arguing: (1) Licudine's motion under section 473 was untimely because it was filed almost 20 months after the court's dismissal of the lawsuit; (2) Licudine unreasonably delayed in bringing the section 473 motion once he had actual notice of the dismissal; (3) Licudine did not attempt to initiate any litigation activity between the time of the dismissal and January 2006; and (4) setting aside the dismissal would be highly prejudicial. The claimed prejudice included the existence of outstanding discovery, the effect of the long passage of time on locating witnesses and the witnesses' recollection of events, and the poor health of one of the defendants.

After a hearing, the court (Judge Christopher Yeager) denied Licudine's motion. The court found the motion was untimely because Licudine's counsel admitted he had actual notice of the dismissal in January 2006, but nonetheless waited four and one-half months to move to vacate the dismissal. The court also found defendants would suffer "a severe prejudice in having this [dismissal] set aside." The court additionally made an express finding that Licudine's counsel had been orally notified by Judge Foerster in July 2004 that the order to show cause hearing had been continued to October 27, but counsel nonetheless failed to appear at the hearing.

Licudine appeals.

DISCUSSION

Under section 473, subdivision (b), a party may seek relief from a dismissal. The motion must be filed no later than six months after the dismissal. ( 473, subd. (b).) During this time, there is a strong public policy in favor of granting relief. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Where, as here, the six-month period has passed, courts retain inherent power to set aside the judgment on equitable grounds, but the public policy in favor of finality predominates, and relief may be granted only in exceptional circumstances. (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-982; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314-315.) One of the essential elements for obtaining equitable relief after the six-month period is that the party demonstrate diligence in seeking to set aside the dismissal once the dismissal was discovered. (Rappleyea, supra, 8 Cal.4th at p. 982; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503, 506, 509.) A trial court has broad discretion in determining whether the moving party was diligent in seeking relief. (Rappleyea, supra, at p. 981.)

In this case, the trial court found that Licudine did not establish reasonable diligence because he did not show a reasonable justification for waiting almost five months after his counsel knew of the dismissal before seeking any relief. The record supports this finding. In his declaration in support of the motion, Licudine's counsel made no attempt to provide any explanation for the delay. At the hearing on the motion, the court specifically asked Licudine's counsel why he waited so long to file the motion for relief. Counsel answered: "I was trying to get the information from the Court. I had to get the record . . . . And then I had to figure out what happened." This vague explanation does not justify the substantial delay in filing the motion for relief.

Because the automobile accident that was the subject of the lawsuit occurred four years earlier, the court could reasonably find it was essential that Licudine seek immediate relief. This is particularly true in light of the facts showing Licudine's counsel took no action to move the case forward during the 14 months that he believed the case was still active and the evidence showing the Gallegoses were substantially prejudiced by the delay.

In his appellate reply brief, Licudine attempts to assert new justifications for his counsel's failure to seek relief promptly. For example, he states (without citation to the record) that his counsel "had to deal with a full trial calendar and hearings at the Workers' Compensation Appeals Board as well as in the Superior Court." These new arguments are not properly before us. We review the record based on facts known to the trial court when it ruled on the motion. (See Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 494-495.) Moreover, the new proffered excusesessentially that counsel had a busy scheduledo not adequately explain a delay of more than four months to seek relief from the dismissal.

The court did not abuse its discretion in finding Licudine was not diligent in taking action once he claimed to have learned of the dismissal and therefore that Licudine's motion for relief was unmeritorious. (See Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 83.) Based on this conclusion, we do not reach Licudine's other arguments, including that he did not have sufficient notice of the October 27, 2004 order to show cause hearing. Even assuming he was not given actual notice of the hearing and/or of the dismissal, Licudine was not entitled to equitable relief because he did not move promptly for relief once he found out about the dismissal. To establish grounds for equitable relief, a party must establish reasonable diligence after actual notice of the dismissal, in addition to showing extrinsic fraud or mistake. (See Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 503.)

Further, to the extent that Licudine seeks to challenge the dismissal order (as opposed to the order denying his motion for relief), he has no standing to do so. Licudine's notice of appeal did not identify the dismissal order, and any attempt to appeal from the dismissal order (filed in October 2004) would have been untimely based on Licudine's notice of appeal filed in August 2006. (Cal. Rules of Court, rule 8.104(a) [specifying 180 days as the outside limit for filing a notice of appeal].)

DISPOSITION

Order affirmed. Appellant to pay respondents' costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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