ESTHER B., v. CITY OF LOS ANGELES

Filed 1/11/08

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Affirmed.

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Esther B., in pro. per.; and Burton Mark Senkfor for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Kim Rodgers Westhoff, Deputy City Attorney, for Defendants and Respondents City of Los Angeles, Willie Williams, Steven J. Carey, Richard A. Duran, Garth M. Grugal, Timothy G. Anderson, Vivienne T. Gomez, Michael J. Diaz and Joan M. Schipper.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Louis R. Mauro and Stacy Boulware Eurie, Assistant Attorneys General, Christopher E. Krueger, Jonathan K. Renner and Hiren Patel, Deputy Attorneys General, for Defendant and Respondent Attorney General of California and California Department of Justice.

Larry Bolton, Chief Counsel, Susan Diedrich, Assistant General Counsel, and Elizabeth Sandoval, Staff Counsel for Intervener, Defendant and Respondent California Department of Social Services.

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Plaintiff appeals from the trial courts order denying her relief from the dismissal of her motions for attorney fees.

In a prior appeal, we affirmed the trial courts order dismissing plaintiffs motions for attorney fees because she did not file her attorney fee documents until 20 days after the date set by the court. This appeal is from the trial courts order denying plaintiffs motion under Code of Civil Procedure section 473, subdivision (b),^[1]for relief from the order dismissing her attorney fees motions. Plaintiff argues that relief was mandatory under section 473, subdivision (b), because she and her cocounsel were both at fault in failing to get the documents filed on time. In the alternative she contends that even if only the discretionary provision of section 473, subdivision (b), applies to her situation, the trial court abused its discretion in failing to grant relief on the basis of her mistake, inadvertence, surprise or excusable neglect. We affirm the order denying relief.

FACTS AND PROCEEDINGS BELOW

Plaintiff initiated this action against the City of Los Angeles and other public agencies on behalf of herself and her minor daughter seeking damages and an order removing their names from Californias Child Abuse Central Index (CACI). She also sued as a taxpayer seeking reforms of the CACI through injunctive and declaratory relief. Plaintiff, an attorney licensed to practice in California, appeared in propria persona along with cocounsel Kenneth Kossoff.

Plaintiff did not obtain the judicial relief she sought. During the pendency of the litigation, however, the Legislature amended the statutes governing the CACI to provide greater protections to persons listed in the CACI. Claiming her lawsuit was the catalyst in bringing about these changes, plaintiff moved for attorney fees under Californias private attorney general statute ( 1021.5) and under other statutory and common law theories.

The trial court stayed plaintiffs attorney fee motions for trial work pending her appeal on another aspect of her case. After the remittitur issued in that appeal, the court gave plaintiff until November 3, 2001, to file a motion seeking fees incurred in the appeal.

On September 17, 2001, plaintiff informed the court she would be filing supplemental papers to discuss legislation enacted after she filed her trial fee motion. On October 4, 2001, the court ordered that plaintiff file her motion for attorney fees on appeal and the supplemental papers supporting her motion for attorney fees for trial work by November 24, 2001.

On November 29, 2001, plaintiff again informed the trial court of her intent to file supplemental papers explaining the legislative, policy, and regulatory changes that had occurred since she filed her motions for trial attorney fees. Plaintiff also stated that she would discuss her right to fees incurred in representing herself. The court set a January 3, 2002 deadline for plaintiff to file a motion for attorney fees incurred in her unsuccessful appeal and to file any supplemental papers regarding her earlier fee motions.

On December 31, 2001, the court granted plaintiffs ex parte request to extend the January 3 deadline to January 10, 2002, because of plaintiffs claim of illness. On January 9, 2002, the court granted plaintiff's ex parte request to further extend the filing deadline to January 17, 2002. In granting this extension, the court stated: No further continuance will be granted.

Plaintiff missed the January 17, 2002 deadline.

Two weeks after the deadline passed, defendant City of Los Angeles filed a proposed order seeking to deem plaintiff's fee requests abandoned because of her failure to timely file her attorney fee documents as ordered by the court.

On February 6, twenty days after the January 17 deadline, plaintiff filed supplemental support for her trial fee motions and filed her motion for fees in the appeal. None of the defendants filed opposition to the fee motions. The trial court issued an order directing plaintiff to show cause why the Court should not deem her request for attorneys fees abandoned for failure to file her moving papers as requested by the Courts Orders[.]

On March 25, plaintiff filed a response to the order to show cause in which she apologized for the late filing. Plaintiff stated in part: The late filing occurred because [plaintiff], the sole attorney responsible for preparing the Papers, was unable to complete them on time, due to a protracted and debilitating illness, and her limited resources. . . . This difficulty was compounded by the intricacy and breadth of the legal and factual matters which the Papers had to address, which involve no ordinary fight against City Hall. []  The Papers (a) distill nearly five years of dynamic legislative history regarding the many, complex statutory and regulatory enactments, prompted by [plaintiff's] action; (b) discuss numerous federal and California case[s] decided since the 1997 filing of [plaintiff's] trial fee motions; and (c) address additional issues specified by the Court, including the question of whether [plaintiff] may be awarded fees for her legal services in this matter, given that she is [representing herself].

Plaintiff also submitted the declaration of her cocounsel, Kenneth Kossoff, who stated that he was unwilling to work for free when plaintiff ran out of funds: I was not retained to prepare the [attorney fee] documents. Moreover, it is an understatement to say that I am not up to speed on the law with respect to recovery of attorney fees in this matter. For me to have assumed the task of preparing the Papers while Ms. [B.] was ill would have required an enormous amount of time, which would have precluded me from the portion of my practice that enables me to feed and clothe my children.

In response, defendants submitted evidence that plaintiff was working on other cases during the time her filings were due in this case and that she had made a court appearance in Bakersfield on January 29, 2002.

At the hearing on the order to show cause on March 28, the court expressed doubt that plaintiff was too ill to work because of the evidence that plaintiff was handling other cases during the period preceding the filing deadline. The court further noted: There is a statement by Ms. [B.] . . . describing in summary fashion an illness without particulars of dates, and talking about how it affected the use of the hand, [and] an arm. The nature of the illness is not disclosed, nor is there any evidence to the extent that there was paralysis or inability to use the arm[.] [To] the extent that Ms. [B.] suggests paralysis or something that affected the use of her arm, there is nothing from a medical doctor that describes the nature of the infirmity or treatment.

The court also expressed doubt about plaintiffs excuse that she did not understand what I needed to do for these papers until the court clarified them on November 29 and specified page limits and exactly what topics were to be covered[,] such as why I . . . could get fees because Im [representing myself]. . . . The trial court stated, Wasnt that intuitively obvious to the most casual observer? [] . . . [] An attorney who is a plaintiff in pro per is ordinarily not entitled to attorney's fees. [] . . . The fact that you were the plaintiff in pro per in this case for some or all of this period of time was a fact that was actually known to you. [] And the idea that you might be required to demonstrate why the ordinary rules which prevent an attorney acting in pro per [from] recovering attorneys fees for his or her own work . . . is something that should have been blatantly obvious. I cant see how it could possibly have been a surprise.

After taking the matter under submission, on April 15, 2002, the court issued an order that [plaintiffs] untimely filings are not excused, and the requests for attorney fees are deemed waived. The court acknowledged plaintiff was not at this time making and the court is not adjudicating a 473[, subdivision] (b) motion.

We affirmed the courts order deeming plaintiffs request for attorney fees waived. Plaintiff then moved to set aside default and/or dismissal of plaintiffs motion for attorney fees under both the mandatory and discretionary provisions of section 473, subdivision (b).

In support of her section 473 motion, plaintiff incorporated all of her previously filed documents relating to the April 15, 2002 dismissal of the attorney fees motions. In addition she filed her own declaration as well as declarations by her physician and her cocounsel. In her declaration plaintiff attempted to excuse the late filings on various bases: for nearly two months she was unsure of the topics she was to address and the format in which to address them; the factual and legal issues were complex; she had to work on other motions in the case; between November 2001 and February 2002, she was seriously ill with shingles which effected the use of her left hand; and she had no funds with which to pay another attorney or clerical staff to assist her with the preparation of the supplemental attorney fee papers.

Plaintiffs physician confirmed that since at least April 1999 plaintiff had suffered recurring episodes of shingles. When these episodes occurred, plaintiff suffered an outbreak of skin rash or blisters as well as numbness, weakness and pain radiating from her left shoulder through her left hand caused by neuralgia. The physician did not confirm that plaintiff suffered from shingles or neuralgia between November 2001 and February 2002.

Kossoff, plaintiffs cocounsel, stated that he had been representing her in this action since 1994. It was his fault that the documents were not filed on time. He did not prepare the papers or assist plaintiff to prepare them because he had not been paid for several years of previous work on the matter and he assumed that even after plaintiff became ill that she would be able to file the papers on time. He made a mistake in assuming that plaintiff could complete the job because he failed to recognize how very complicated the task of preparing the [attorney fee documents] would become.

The trial court denied plaintiffs motion for relief and she filed a timely appeal.

DISCUSSION

I. MANDATORY RELIEF UNDER SECTION 473, SUBDIVISION (b).

The mandatory provision of section 473, subdivision (b) requires the trial court to vacate a dismissal, an entry of default and a default judgment whenever an application in proper form is timely made and is accompanied by an attorneys sworn affidavit attesting to the attorneys mistake, inadvertence, surprise or neglect unless the court finds that the default or dismissal was not for any of the enumerated reasons.^[2]Thus, when an attorney timely attests that the default or dismissal was caused by the attorneys mistake, inadvertence, surprise or neglect relief is mandatory unless the trial court finds, as a factual matter, that the dismissal or default was not due to fault on the part of the attorney.

An order dismissing a late attorney fee motion is subject to mandatory relief under section 473, subdivision (b). (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193.)

Here, the trial court found Kossoff was not at fault in causing the dismissal of plaintiffs attorney fee motions. Instead, the court found that plaintiff alone was at fault in causing the dismissal and that Kossoffs acceptance of the blame was a manufactured attempt to rescue plaintiff from her own neglect. Substantial evidence supports these findings.

In seeking an extension of time in which to file her supplemental papers plaintiff declared: I am the sole attorney responsible for preparing plaintiffs [supplemental papers]. (Italics added.) She went on to state that when the briefing schedule was set at the end of November, I believed I could complete the [papers] within a month. Shortly afterward, however, I became very ill, and I have been sick for the major portion of the last four weeks. Although I have continued to work, I have been much less productive than I anticipated. Likewise, in responding to the order to show cause why the attorney fee motion should not be dismissed plaintiff stated: The late filing occurred because [plaintiff], the sole attorney responsible for preparing the [p]apers, was unable to complete them on time, due to a protracted and debilitating illness, and her limited resources. (Italics added.)

As noted above, Kossoff filed a declaration in the proceeding to dismiss plaintiffs attorney fee motions in which he supported plaintiffs claim that she was solely responsible for filing the supplemental papers. He testified that plaintiff was solely responsible for the attorney fee motions and that he did not step in to assist even though he believed that she was ill because preparing the motions was outside the scope of his retainer, he was not knowledgeable about the legal issues, he had not been paid for the work he had already done and he could not afford to take time away from his paying clients to assist plaintiff on a pro bono basis.

Kossoff also filed a declaration in support of plaintiffs motion for relief under section 473, subdivision (b). In this declaration Kossoff stated that he did not assist in the preparation of the filings because: I cannot afford to spend a significant amount of time on additional non-paying matters, but also based on my mistaken belief that Ms.[B.] would be able to timely complete those papers without my assistance. This declaration implicitly contradicts Kossoffs earlier declaration in which he stated that he did not assist plaintiff with the attorney fee motions because he was not knowledgeable about the pertinent law and could not afford to sacrifice billable hours in order to learn it.

After comparing Kossoffs two declarations the trial court stated: I do not find Mr. Kossoffs declaration of fault credible. It is an after-the-fact rationalization to bail [out] Ms. [B.].

The court made a further finding that it was Ms. [B.] who was at fault. The court based this finding on the declarations plaintiff filed in the previous hearing, quoted above, in which Ms. [B.] was taking the sole responsibility for . . . the preparation of [the papers]. . . . Ms. [B.] never, at the pertinent times, communicated . . . to the court any facts which would suggest that there was any responsibility on any other person. Ms. [B.] was assuming the sole and individual responsibility for the preparation of this material according to her contemporaneous representations to the court.

We find no basis for disturbing the trial courts conclusions that Kossoff was not at fault in the failure to timely file the supplemental papers and that the fault lay with plaintiff.

II. THE APPLICATION OF THE MANDATORY RELIEF
PROVISION OF SECTION 473, SUBDIVISION (b) TO
PARTIES REPRESENTING THEMSELVES

Plaintiff contends that even assuming she, not Kossoff, was at fault in causing the dismissal of her attorney fee motions she is entitled to mandatory relief under section 473, subdivision (b), because she is an attorney. Neither the statutes language nor its legislative history supports this argument.

Interpretation of a statute is a question of law, so our review is de novo. (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.) To interpret the statute, we must ascertain legislative intent, starting with the language of the statute. [Citation.] If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Ibid., quoting Estate of Griswold (2001) 25 Cal.4th 904, 911.) Furthermore, a particular clause in a statute must be read in harmony with other clauses and in the context of the statutory framework as a whole. (Young v. McCoy, supra, 147 Cal.App.4th at p. 1078.)

The mandatory relief provision of section 473, subdivision (b) states in relevant part: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is . . . accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default entered by the clerk against his or her client . . . . (Italics added.) Under the plain language of the statute, the mandatory relief provision only applies in the case of an attorney representing a client. Our interpretation is further supported by comparing the mandatory relief provision with the discretionary relief provision of the same subdivision. The latter provides that the court may set aside a default or dismissal on the motion of a party or his or her legal representative. Thus the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party.

Because we find the plain language of section 473, subdivision (b), precludes mandatory relief in favor of a pro per party we need not rely on the legislative history of the statute to determine the lawmakers intent. We note, however, our interpretation is consistent with that expressed intent. The purpose of the mandatory relief provision is to relieve the innocent client of the burden of the attorneys fault, place that burden on the malfeasant attorney and avoid triggering more litigation in the form of a malpractice suit. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927; and see Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1605, fn. 14 [summarizing the legislative history of the mandatory provision].) Granting mandatory relief to parties appearing in pro per, even if they are attorneys, would not serve any of the purposes of the legislation. In these situations the client is not innocent, there is no one to whom the blame can be shifted and there is no risk of a malpractice action because the client would have to sue herself.

Plaintiff, however, contends that even assuming only an attorney who acts on behalf of a client is entitled to mandatory relief, she qualifies because she is an attorney who brought this action, in part, as a taxpayer on behalf of the other taxpayers who are, therefore, her clients. She argues that if she had entered into a settlement with the city on her taxpayer claims the settlement would have been res judicata as to a subsequent taxpayer action on the same claims. (See Gates v. Superior Court (1986) 178 Cal.App.3d 301, 307-308, 311-312.) Under Gates, if plaintiff binds other taxpayers by her action she does so as a fellow taxpayer, not as an attorney for the taxpayers. Plaintiff has provided no authority that she represented any taxpayer other than herself.

III. DISCRETIONARY RELIEF UNDER SECTION 473, SUBDIVISION (b)

Under the discretionary relief provision of section 473, subdivision (b), the trial court may relieve a party from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. We review the trial courts order denying relief for abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Plaintiffs declaration stated that her filings were late because at first she did not understand the issues to be covered and the format to be used, the papers involved broad and complex legal and factual matters, she was involved in preparing numerous other motions in this case, she suffered from debilitating neuralgia between late November 2001 and February 2002, and she had no funds with which to hire legal or clerical assistance in preparing the papers. With respect to her illness, plaintiff stated that at an unspecified time after November 29, 2002: I became sick. I assumed it was a typical cold, but it progressed into a much more severe illness, and triggered a systemic, painful disorder from which I suffer, commonly known as shingles (herpes zoster). Worse yet, the shingles triggered postherpetic neuralgia in my left arm and hand, which was very debilitating and painful, lasted for months (into February 2002) and greatly reduced my productivity.

On appeal, plaintiff maintains that her declaration and the declaration of her physician established her excusable neglect but that the trial court abused its discretion by wholly disregarding plaintiffs evidence, and by denying discretionary relief without considering the merits of plaintiffs motion. We disagree.

The trial courts failure to state its reasons for denying plaintiffs request for discretionary relief is not evidence that the court disregarded her evidence or failed to consider the motion on its merits. The statute does not require the court to state its reasons for granting or denying the motion. On the contrary, unless there is a good reason not to, [w]e must assume that the trial court has considered all the evidence before it, determined which witnesses are to be believed, [and] explained all discrepancies and inaccuracies to its own satisfaction[.] (Bennett v. Phelps (1955) 136 Cal.App.2d 645, 652.)

Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, cited by plaintiff to support her claim of abuse of discretion, is inapposite. In Gamet, the trial court denied the pro per plaintiff discretionary relief from a judgment of dismissal entered after she failed to appear at a pretrial conference. The Court of Appeal concluded there was an abuse of discretion because of a combination of events. (Id. at p. 1283.) First, the appellate court could not find in the record any indication the trial judge gave any consideration to Gamets alleged personal and family traumas. Furthermore, [t]he judges comments he could jam Gamet and that he wanted to keep the heat on, when combined with the unexplained judgment dismissing the action shortly thereafter, seem arbitrary and create the appearance of substantial unfairness. (Ibid., fn. omitted.)

We do not read Gamet as holding an order denying discretionary relief under section 473, subdivision (b), is reversible if the record fails to show that the trial court considered the moving partys evidence. In Gamet, the record was silent and the appellate court had reason to doubt that the trial judge had considered the plaintiffs evidence of excusable neglect because the record indicated the judge was more interested in disposing of cases than justice and fairness. (Gamet v. Blanchard, supra,91 Cal.App.4th at p. 1283.) In this case, the trial court held a lengthy hearing on plaintiffs motion for relief from dismissal. Furthermore, in the earlier hearing on the defendants motion to dismiss plaintiffs request for attorney fees the court had already heard and rejected the same excuses for late filing that plaintiff presented in support of her motion for relief from that dismissal.

The only new witness plaintiff presented on the motion for discretionary relief was Dr. Gordon, her primary care physician. Gordons declaration confirmed plaintiff suffers from shingles, which he described as an outbreak of a skin rash or blisters, accompanied by aching or stabbing pain which may be very severe. He also verified that shingles can lead to episodes of intense, debilitating pain (postherpetic neuralgia), which can continue for months (or even years). But Gordon did not substantiate plaintiffs claim that she suffered from shingles and neuralgia during the period from November 2001 to February 2002 when she needed to be preparing her supplemental papers for her attorney fee motions. On the contrary, Gordon testified plaintiff came to his office on December 13 and December 28, 2001, suffering from an upper respiratory infection for which he prescribed an antibiotic. On January 21, 2002, plaintiff called Gordon and stated that she was experiencing shortness of breath and other symptoms and that she would come in for an examination. Three days later plaintiff called and cancelled her appointment. Plaintiff next came to Gordons office on February 21. She had a cough and an apparent sinus infection.

It was not unreasonable for the trial court to believe that if plaintiff had suffered an outbreak of skin rash or blisters or had complained of intense, debilitating pain on any of the occasions she telephoned or visited Gordons office in December 2001 and January 2002 he would have noticed it and mentioned it in his declaration.

For these reasons, we find no abuse of discretion in the denial of plaintiffs request for relief under the discretionary relief provision of section 473, subdivision (b).

DISPOSITION

The order is affirmed. Respondents are awarded their costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P. J.

JACKSON, J.^*

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^* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I and III.

^[1] All section references are to the Code of Civil Procedure.

^[2] Section 473, subdivision (b), states 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 attorneys 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 . . . 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 attorneys mistake, inadvertence, surprise or neglect.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)