Filed 4/2/18 McDonald v. Bryant CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

CATHERINE MCDONALD,

Plaintiff and Respondent,

v.

LAURIE BRYANT,

Defendant and Appellant.
H040881
(Santa Clara County
Super. Ct. No. 1-11-PR-169547)

Appellant Laurie Bryant seeks review of an order denying her motion to set aside a stipulated judgment pursuant to Code of Civil Procedure section 473. Appellant contends that she was entitled to relief from the judgment because it was the product of either mutual mistake or misrepresentation by opposing counsel and a settlement judge, who misled the court into incorrectly applying Family Code section 1102. We will affirm the order.
Background
The subject of this lawsuit is a San Jose residence that was occupied by George McDonald and his wife, respondent Catherine McDonald, until George’s death in early 2011. Appellant, one of the couple’s daughters, lived with them at various times, as did appellant’s minor daughter, A., and her adult daughter, Heather Bryant. One of the McDonalds’ other daughters, Cheryl, also lived with them.
On November 17, 2005, George and Catherine executed a revocable family trust declaring the residence to be community property. By November of 2010, however, Catherine found George to be “mentally confused.” On November 11, 2010, George’s doctor determined that he was disoriented and incapable of making any financial decisions.
On November 26, 2010, George executed two deeds, both prepared by appellant: one conveying George’s interest as trustee to himself as an individual for $10, followed by a deed conveying his individual interest to appellant and her daughter Heather without consideration. Appellant and Heather thus received a one-half interest in the residential property as joint tenants. The second deed purported to reserve for George a life estate, with a restriction prohibiting him from selling, encumbering or disposing of his interest by any means.
The parties agree that George died on February 9, 2011. The deeds were recorded March 3, 2011. According to Catherine’s subsequent declaration, she was unaware of the deeds until after George’s death. On September 20, 2011, she filed a petition to determine ownership of the property and for an order canceling the deed to appellant and Heather.
Extensive settlement correspondence took place between the parties’ attorneys from April 11 through April 14 of 2012. On April 19, 2012, appellant’s attorney, Jeffrey H. Greenwald, complained that Catherine’s attorney, David A. Ryder, had attempted to communicate with appellant without his consent. Greenwald himself had told Ryder in early April that he was no longer representing appellant, and he had given Ryder appellant’s contact information. Appellant confirmed Greenwald’s statement in a telephone conversation with Ryder; but a day or two later, Greenwald informed Ryder that he was “ ‘back on board’ ” as appellant’s attorney. Ryder did not speak directly with appellant after that, until appellant appeared at his office on June 18, 2012, accompanied by Catherine and appellant’s friend Nancy. Appellant “categorically” told Ryder that Greenwald was no longer representing her and that she was without legal counsel in this matter.
On June 25, 2012, after discussions among Catherine, appellant, and Ryder, Catherine and appellant settled the matter. They agreed that (1) the November 2010 deed was “null and void by reason of the fact that [George] lacked mental capacity to execute said deed,” and that (2) any interest “purportedly conveyed” to appellant in the deed remained vested in Catherine as trustee of the November 2005 family trust. Catherine and Heather had already entered into a similar stipulation. In exchange for appellant’s execution of the stipulation Catherine amended the trust that day. She revoked a prior amendment and revised provisions pertaining to a special needs trust for her disabled daughter, Cheryl. The amendment also distributed shares to Catherine’s daughter Karen, appellant’s young daughter, A. (through a special needs trust), and appellant.
On July 9, 2012, the superior court entered orders consistent with the parties’ stipulations, affirming that the deed conveyed no interest to appellant or Heather and declaring that Catherine, as trustee, held the property “in fee simple, free and clear of any joint tenancy restrictions set forth in said deed.”
On October 5, 2012, appellant, now again represented by attorney Greenwald, moved to set aside the stipulated order under section 473. Appellant alleged misconduct by Ryder, who she said “deliberately denied [her] counsel” and “bamboozled her into signing a deceptive document” while she was “in an upset emotional state.” Appellant had represented in the written stipulation that she had no legal counsel and that Catherine’s attorney had not given her any legal advice. In her motion, however, she accused Ryder of perpetrating a “fraud upon the court” by communicating with “an opposing represented party” and by implying that the stipulation was fairly reached. Appellant further asserted a mistake of law by being “induced” by Ryder to believe that the trust was irrevocable. She added that she experienced surprise when Ryder “tried to convince her she was unrepresented, when in fact she had not informed Mr. Greenwald [that] he was fired, nor had Mr. Greenwald terminated his representation.” Finally, appellant claimed excusable neglect: She was “clearly confused by the statements of opposing counsel that she was unrepresented and that she was agreeing to an irrevocable trust.” Her “emotionally distraught” state made the neglect “even more excusable.”
On December 10, 2012, at a hearing on the motion before the Honorable Thomas Wm. Cain, appellant’s counsel attributed her “emotional distress” to the return of her daughter A. from foster care on May 11 and to the need to find stable housing lest she lose custody of A. again. When pressed, appellant admitted that A. was returned to her June 25, the day she signed the stipulation and thus obtained stable housing by moving back into Catherine’s home. The court tried to ascertain what the specific source of emotional stress was that caused her to sign the agreement. Appellant first said that she was upset because she “had to do everything DFCS required to keep my child.” The court asked whether something specific presented a particular difficulty on June 25; appellant suggested that the living situation was unstable after she moved back into the residence. The court pressed her to identify what stress or difficulty before signing the agreement that caused her “not [to] think straight or [to] be taken advantage of.” Appellant suggested instead that it was her chronic depression, which had been diagnosed three months before the current hearing; but the court noted that this diagnosis would have been made in September, not June. Appellant finally attributed the problem simply to “being under a lot of emotional stress trying to provide for my daughter and that creates anxiety and depression. It was difficult for me to think clearly.”
The court then indicated its belief that appellant had in fact told Ryder that she was unrepresented when she entered into the stipulation. Greenwald acknowledged that he was out of contact with appellant “for quite some time,” and that he had not at that point made a general appearance in this matter; but he attributed the lack of contact to appellant’s “emotional state.” He summarized appellant’s position by saying that “[b]asically, it comes to the fact that my client was—to use the expression—not in her right mind around that time period.”
After extensive discussion among the court, counsel, and appellant herself, Judge Cain concluded that he did not “believe a word she said with regard to her circumstances that supposedly led her to sign this [stipulation].” He did not believe “for a moment” that she was depressed, that she was in emotional distress and overwhelmed by circumstances, or that she was misled by Ryder. Nevertheless, while there was “more than enough justification to deny the motion,” the court granted it based solely on its preference that she be represented by counsel.
On March 22, 2013, Catherine filed an amended petition to declare void the deeds conveying George’s interest in the property to appellant and Heather and to determine that the family trust, as amended in conformity to the June 25, 2012 stipulation, was revocable by Catherine, as trustee with exclusive fee simple interest in the property. In her trial brief, Catherine argued that the deeds were void based on (1) appellant’s exercise of undue influence over George and (2) the Family Code section 1102, subdivision (a) proscription against transfers of community real property without the spouse’s consent.
Appellant and Heather opposed the petition and asked the court to dismiss Catherine’s action with prejudice. They also requested an order correcting the date of recording pertaining to the first deed (conveying George’s interest as trustee to himself individually) so that it could precede the recording of the deed conveying ownership to appellant and Heather.
The parties engaged in negotiations facilitated by a settlement judge on December 4, 2013. On December 12, 2013, following discussion between counsel and the court throughout the day, the parties executed a written settlement of their dispute. Appellant agreed “that the Deeds shall be deemed void, that she has no interest in the Residence, and that Catherine is the sole owner of the Residence as Trustee of the Trust.” Appellant further agreed to the expungement of a lis pendens she had had recorded in October 2012. In exchange, Catherine agreed to procure a loan against the residence and give appellant $15,000 from the loan proceeds to enable appellant to find other housing. Catherine also agreed to allow appellant to stay at the residence for seven months following the date of the agreement or 30 days after receiving the $15,000 from Catherine, whichever period was longer.
At the end of the day, the parties appeared in court for entry of the stipulated order. The court deemed the residence “fully vested to Catherine” and declared the trust fully amendable by her. It stated that appellant had no interest in the property, declared the November 2010 deeds null and void, and expunged any notice of lis pendens recorded by appellant. The court then asked the parties whether they had read and understood all the terms of the stipulated order and had signed it “freely and knowingly”; both said yes to these questions. Both parties and their respective attorneys signed the resulting order, filed December 20, 2013, reflecting the terms recited by the court at the hearing.
Notwithstanding the parties’ agreement to be bound by the agreement and their mutual release of future claims related to the action, on December 26, 2013—only six days after the stipulated order was filed—appellant recorded a new notice of lis pendens and a new motion to set aside the settlement. Again citing section 473, she claimed “mistake, inadvertence, surprise, or excusable neglect” in the court’s application of Family Code section 1102 to George’s “gift” to her and Heather. Relying on Trimble v. Trimble (1933) 219 Cal.340 (Trimble) appellant asserted that it was “well established law” that the death of the donor “perfects the gift as to his share of the community property,” because the community no longer exists. (Emphasis omitted.) Thus, she argued, once George died, Catherine could no longer avoid his unilateral gift of his own interest to appellant.
Greenwald explained the failure to make this argument sooner. Instead of researching the issue when it was first raised by the settlement judge, he merely protested the lateness of the claim after the case was assigned to the Honorable Kenneth P. Barnum on December 11, 2013. After being given until the evening to research the Family Code section 1102 issue, the next day he asserted only laches. Judge Barnum, however, “did his own research and told [appellant] he had determined that the statute applied to this case, and that [Catherine] could invalidate the deeds on that basis alone. [¶] In total reliance on the judge’s conclusion,” appellant then entered into the second settlement. (Italics added.) Only after the agreement was signed did counsel and appellant engage in research that convinced them that Family Code section 1102 did not allow avoidance of the gift once the donor is deceased.
Catherine opposed the motion. On January 16, 2014, she obtained an ex parte order expunging the December 26, 2013 lis pendens. On February 13, 2014, appellant filed an amended motion to set aside the stipulation and order, again based on “mistake, inadvertence, surprise, or excusable neglect.” This time appellant affirmatively stated that the assertedly erroneous application of Family Code section 1102 had occurred through “an artifice” by the settlement judge and Ryder, “designed to deprive [appellant] of her rights . . . by knowingly misrepresenting the law regarding a deceased donor to Judge Barnum.” According to appellant, Ryder knew that the statute would not apply after George’s death, because he had drafted the trust with reference to Family Code section 1102. Appellant reiterated that “Trimble, not section 1102, is the controlling law in this case where the donor is deceased.” As a result, Catherine was “barred from any recovery” because George was deceased when she filed the action. (Italics omitted.)
In his argument in support of the amended motion, appellant’s counsel accused the settlement judge of threatening to tell Ryder about Family Code section 1102 if appellant and Greenwald did not accept the proposed settlement. When appellant did not accept the offer on December 4, 2013, the pro-tem judge “apparently suggested” to Ryder that he invoke the statute, and on December 9 Ryder “improperly and unlawfully decided to argue to Judge Barnum that the statute did apply in this case, in violation of ethical principles.” As Ryder “did not inform the court of the inapplicability of [Family Code] section 1102, and presented it as good law,” this “proves [that] he defrauded the court.” (Emphasis omitted.)
Greenwald attempted to describe further the mistake, surprise, and excusable neglect that warranted relief for his client. The mistake of law “was made” based on a “misplaced confidence in the legal correctness of the mediator’s claim and the judges [sic] proposed ruling, and the fact that the law in this area is quite complex.” It was appellant’s mistake of law in her reliance on “Judge Barnum’s incorrect conclusion that the statute invalidated Mr. McDonald’s deeds, when after thoroughly researching the issue, it is now clear it does not.” “The fact that the Judge missed this also indicates how complex this area of law is and shows the mistake is excuseable [sic].” Surprise, Greenwald argued, was established by “the great delay in bringing the claim by Mr. Ryder, the unethical interference by the mediator, and the limited time allowed to study this issue and prepare for trial . . . If given additional time to study the issue, it would have been seen that the statute is no longer relevant due to the death of Mr. McDonald.” Finally, Greenwald asserted excusable neglect because he was given inadequate time to research the issue; as a result, “the incorrect conclusion was reached.”
In response, however, Catherine pointed out, as she had in her previous opposition, that appellant’s counsel had had eight days from the settlement judge’s advice regarding Family Code section 1102 to consider the applicability of the statute, and he did not request a continuance to research the issue. Referring the court to her previous written argument, Catherine emphasized that the settlement was the product of “extensive negotiations” and that it involved significant concessions from her to appellant. She suggested that section 473 was being used impermissibly “to cover up inexcusable mistakes on the part of counsel.” Catherine further asserted that appellant had indeed exercised undue influence over George. In support of that position Catherine submitted reports from multiple physicians noting George’s dementia.
Catherine maintained that no new grounds for section 473 relief had been established. Ryder again noted that Greenwald, rather than proceed to trial or seek a continuance to research what he considered a “complex” area of law, elected instead to settle the case, with substantial concessions to appellant from Catherine. Ryder added that standard trust documents include a provision that section 1102 shall not apply after the death of one spouse, in order to allow the surviving spouse to have the full power to dispose of the assets in the trust.
The final hearing on this matter took place on February 28, 2014. Greenwald insisted that he did research the applicability of the statute, but he found it “hard to find material” on this “complicated, confusing issue.” He did not believe that there was any failure on his part, because all of them—the settlement judge, Ryder, and he—had agreed that the statute did apply, and only later did Greenwald see that they were “all wrong.” His client therefore should not be punished for “everybody’s mistake.”
The court expressly took offense at Greenwald’s refusal to acknowledge his sole responsibility for the asserted legal error: “To say that we all made a mistake, when you’re bringing a motion, you want something done, the burden’s always on you. You can’t rely on the mediator. You can’t rely on Mr. Ryder. You can’t rely on me. [¶] It’s your responsibility. Not mine. Not Mr. Ryder’s. Not [the settlement judge’s]. Yours.” If Greenwald had needed more time, he “should have asked for it.” The court emphasized that it had no duty to research points raised by the parties unless they were in conflict, which had not been the case at the last hearing.
The court then clarified that the statutory issue “ha[d] nothing to do with my decision . . . [¶] My decision is based on . . . everything that was presented to me at that settlement . . . .” Contributing to its view of the case was the circumstance of George’s purported “gift” of his property interest while multiple doctors had noted his dementia in their medical reports. In that light, the court explained, Family Code section 1102 “didn’t figure in much in how I felt about the case.” From the resulting order denying appellant’s section 473 motion, appellant brought this timely appeal.
Discussion
1. Standard of Review
At the outset, appellant misperceives the principles governing this court’s review of the order denying her motion to set aside the second settlement. She considers the issue before us as a simple question of law which should be decided de novo. She then focuses on Family Code section 1102 and the lower court’s “unwilling[ness] to even consider” its own mistake, as well as the mistake or fraud by opposing counsel and the settlement judge. In making these points, appellant fails even to mention the deferential standard of review applicable to orders made under section 473. Adherence to that standard compels a determination that relief was properly denied in this case.
Section 473, subdivision (b), provides, in pertinent part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Where, as here, the relief sought is from an order other than a default, default judgment, or dismissal, relief is discretionary. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).) It is the party seeking relief who bears the burden to establish a right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (Hopkins & Carley).) “ ‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’ ” (Zamora, supra, at p. 257, quoting State Farm, supra, 90 Cal.App.4th at p. 610; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384 (Generale).)
Focusing on the applicability of Family Code section 1102 rather than the provisions for relief under section 473, appellant obliquely returns to her claim of misrepresentation, arguing that “opposing counsel and the mediator were well aware that [Family Code section 1102] did not apply when they presented it to appellant’s counsel and Judge Barnum, and that this was a ploy on their part to deprive appellant of the opportunity to defend her deeds at trial and her right to due process.” “There is no doubt,” she insists, that the settlement judge “misstated the law, whether or not in good faith.” Then, at the February 28, 2014 hearing, Judge Barnum “turned a blind eye” to the “mutual mistake or fraud” by “the mediator, [the] court, and opposing counsel” in his decision.
Appellant does not acknowledge that it was the mistake or neglect of her own attorney that resulted in the decision to sign the second settlement agreement. However, despite the repeated placing of blame on the settlement judge, opposing counsel, and the trial court, it is clear that the failure to oppose the settlement was attributable solely to Greenwald's own neglect or mistake of law. While an honest mistake of law can be a valid ground for discretionary relief under section 473 where the area of law is unsettled or “the legal problem posed ‘ “is complex and debatable,” ’ ” (State Farm, supra, 90 Cal.App.4th at p. 611), “relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ (Hopkins & Carley, supra, 200 Cal.App.4th at pp. 1412-1413; see also Security Truck Line v. Monterey (1953) 117 Cal.App.2d 441, 445 [“Ignorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief”].)
“In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. When examining the mistake or neglect, the court inquires whether a reasonably prudent person might have made the same error under the same or similar circumstances.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782-1783, citing Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; accord, Zamora, supra, 28 Cal.4th at p. 258.) “In other words, the discretionary relief provision of section 473 [permits relief only] from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ ” (Zamora, supra, at p. 258, quoting Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681.)
Appellant cannot demonstrate that her attorney’s mistake, inadvertence, or neglect was excusable in the circumstances presented. “ ‘The advancement of arguments is the very essence of the professional responsibilities assumed by attorneys; failure to timely make an argument cannot, therefore, be considered a mistake permitted to an untrained “reasonably prudent person” within the meaning of section 473.’ (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 684.) Similarly, it has been stated that ‘[t]he mere fact that an attorney does not make a skillful presentation of a client’s case will not, standing alone, usually warrant relief under section 473.’ [Citation.]” (Generale, supra, 61 Cal.App.4th at pp. 1400-1401.) Accordingly, even if section 1102 was inapposite here, it was counsel’s own conclusion that led to the decision to accept the settlement based on the statute; erroneously relying on others—including the court—for a legal conclusion does not excuse the attorney from committing his client to an agreement supported by consideration and based on clearly stated, negotiated terms understood by both parties. “ ‘Where the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice [citation], general ignorance of the law or lack of knowledge of the rules [citation], or unjustifiable negligence in the discovery or research of the law, laxness or indifference [citations][,] normally relief will be denied.’ [Citation.]” (State Farm, supra, 90 Cal.App.4th at p. 611.)
Greenwald did not satisfy the trial court that he met the criteria for section 473 relief. It does not help the client to blame others for an attorney’s reliance on an apparently dispositive legal ground when the attorney could have drawn the opposite conclusion by engaging in his own independent research. Indeed, the cases on which Greenwald relied in the motion for relief—Hyatt v. Mabie (1994) 24 Cal.App.4th 541 and Trimble, supra, 219 Cal. 340—were not new. If counsel believed that this issue was complex, he could have asked for a continuance to research it further instead of accepting the legal conclusion of others involved in the settlement. Indeed, it took only two weeks after signing the agreement—six days after the order was filed—for Greenwald to complete the necessary research and retract his express approval of the agreement.
Thus, even if we were to conclude that Family Code section 1102 did not apply here, the denial of appellant’s motion to vacate the stipulated order was not an abuse of discretion. As of January 2014 Catherine was 85 years old and seeking a reverse mortgage in order to meet her living expenses. After twice settling this case, Catherine is entitled to finality in the disposition of her trust property.
Disposition
The order is affirmed.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
PREMO, J.



_______________________________
MIHARA, J.