Burkhardt v. Sanden

Filed 5/22/06 Burkhardt v. Sanden CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Gregory Munoz, Judge. Affirmed.

Richard C. Harris for Plaintiff and Appellant.

Paul H. Bickenbach for Defendant and Respondent.

* * *

This is an appeal from an order awarding relief pursuant to Code of Civil Procedure section 473, subdivision (b) after a litigant was abandoned by his attorney in the final stage of a case, resulting in dismissal. We find no abuse of discretion and affirm the order granting relief.

I

FACTS

This case involved a construction dispute. John Pulliam, a subcontractor, sued both Anthony Burkhardt, the general contractor, and Wilfried Sanden, the project owner, alleging that Pulliam had not been paid as promised. Burkhardt and Sanden then filed cross-complaints against each other, each alleging the other was in breach of contract.

After Pulliam received a judgment against both defendants, the cross-complaints were adjudicated by bench trial. The court issued a tentative statement of decision on May 16, 2003, which became the final after no objections were received. The statement of decision awarded Burkhardt $24,825 on his cross-complaint against Sanden, and awarded Sanden $42,849 on his cross-complaint against Burkhardt. Thus, Sanden was effectively awarded a net recovery of $18,024.

As of November 10, 2004, neither party had submitted a proposed judgment. The trial court set a hearing for an order to show cause regarding why the cross-complaints should not be dismissed for failure to submit a proposed judgment. The hearing was set for December 7, 2004, and mailed to Burkhardt and Stanley D. Bowman of Redondo Beach, Sanden's attorney of record.

Burkhardt, in pro per, appeared at the December 7 hearing, but no appearance was made on Sanden's behalf. The court, noting the long delay, dismissed both cross-complaints.

On March 4, 2005, Sanden, through new counsel, filed and served a notice of motion for an order vacating the dismissal, arguing the judgment should be reinstated pursuant to Code of Civil Procedure section 473, subdivision (b). Sanden submitted a declaration stating that after the tentative decision became final, his former attorney, Bowen, had informed Sanden that he had submitted a judgment for the court's signature and provided Sanden with a copy, which he attached as an exhibit. Thereafter, Sanden called Bowman on a number of occasions to determine the status of the case, but was unable to reach him. Sanden also submitted a proposed judgment for the court's signature.

Burkhardt opposed the motion, arguing that Sanden's argument showed attorney malpractice, not excusable neglect. Because the motion was not accompanied by a declaration from Bowman, Burkhardt argued, Sanden was not entitled to relief. After a hearing, the court granted Sanden's motion for relief, and the judgment was signed on May 18, 2005. Burkhardt now appeals.

II

DISCUSSION

Burkhardt argues the trial court wrongly permitted relief under Code of Civil Procedure section 473. (Subsequent code references are to the Code of Civil Procedure.) Section 473, subdivision (b) states, in relevant part: â€