Thompson v. Compton Unif. School Dist

Filed 4/18/06 Thompson v. Compton Unif. School Dist. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Rose Hom, Judge. Affirmed.

Law Offices of R. K. Bickerstaff, P.C., and R. K. Bickerstaff for Plaintiff and Appellant.

Declues, Burkett & Thompson, LLP, Cary K. Quan, James P. Gallenbeck, and Gregory Wille for Defendants and Respondents.

_______________

Toyanda Thompson, a minor, through her guardian ad litem, sued respondents Compton Unified School District and Centennial High School Principal Mara Ganeles. She also sued School District employee DeAnn Pickett, who is not a respondent here.

The complaint is not in our record, but both on appeal and in the trial court, the parties describe it thusly: the complaint brought causes of action for personal injury, intentional torts, and negligence, based on allegations that Pickett drove Thompson to a swap meet, where Thompson had her tongue pierced by a vendor.

Pickett apparently never answered, and Thompson moved for entry of her default. As to the School District and Ganeles, the case was dismissed as a sanction, after Thompson failed to respond to discovery. Thompson moved to vacate the dismissal and the sanctions under the mandatory provisions of Code of Civil Procedure[1] section 473. The trial court denied the motion, and this appeal is from that order. We affirm.

We begin with the history of the case.

The complaint was filed on October 16, 2002. After demurrers, a first amended complaint was filed in April 2003. Respondents answered. After additional demurrers, discovery began.

On June 3, respondents served form and special interrogatories and document requests on Thompson. Responses were due on July 10, but on Thompson's request, respondents granted an extension of time to July 25.

In the meantime, on July 2, a status conference was held. According to the uncontradicted declaration of counsel for respondents, Thompson's counsel, R.K. Bickerstaff, was present. At the conference, the court referred the case to mediation and set a mediation completion date of October 24, a post-mediation status conference for November 8, a final status conference date of January 15, and a trial date of January 27.

Thompson did not serve respondents with discovery responses by July 25. On August 5, respondents' counsel faxed a meet-and-confer letter to Bickerstaff. He answered on August 7, by telephone, promising discovery responses by August 11. No responses were sent, and on August 22, respondents filed motions to compel, set for September 30.

On September 4, counsel for respondents wrote to Bickerstaff, "to memorialize the conversation" between counsel and Bickerstaff's assistant "Rosie," in which counsel and Rosie agreed that Thompson and her guardian ad litem would appear for their depositions on September 15, that the outstanding discovery would be provided by September 11, and that the motions to compel would be taken off calendar.

Bickerstaff himself responded by letter of that same date, acknowledging the deposition dates, additionally acknowledging that Ganeles's deposition was also set for September 11, and noting that "we might as well start thinking about expert depositions," and that while a mediation was set for October 22, he would be open to earlier settlement discussions.

The next event reflected in our record is the trial court's September 30 ruling granting the motion to compel, ruling that responses were due in ten days and awarding $450 in sanctions. Thompson did not appear at the hearing.

On October 17, 2003, Thompson filed a request for entry of Pickett's default. The accompanying statement of damages specifies $100,000 for pain and suffering, $100,000 for emotional distress, and $300 in medical damages. Both the request for entry of default and the statement of damages are signed by Bickerstaff.

Two days before the October 22 mediation date, Bickerstaff called respondents' counsel and said that there had been a death in his family and that he would not be able to attend.

On October 27, respondents moved for terminating sanctions under Code of Civil Procedure section 2023, subdivision(b)(4)(C),[2] for failure to comply with orders compelling responses to discovery. The request was granted on November 25, and the complaint dismissed with prejudice. The court awarded $580 in sanctions. Thompson did not appear at the hearing on the motion.

The minute order on the motion to vacate and the Superior Court's Case Summary indicate that judgment was entered on April 23, 2004.

On October 22, 2004, almost a year after the case was dismissed, Thompson filed a motion to vacate the dismissal and the terminating sanctions. The motion was accompanied by the declarations of Bickerstaff, and his secretary/paralegal, Rosa Santillana.

Bickerstaff declared that within the past few weeks, he had learned that Santillana had concealed the fact that the order re dismissal, terminating sanctions and/or monetary sanctions had been imposed in this case.

The declaration includes some information about the timing of Bickerstaff's discovery of the true status of the case, but has little information about the timing of earlier events. Bickerstaff specified that he learned of Santillana's deception "in the last few weeks," and that he investigated the case after he became aware that other cases of his were being adjudicated unfavorably. After that, it took some time to audit his files and to get Santillana to disclose the true status of the case, especially because Santillana spent some time in El Salvador. (The date of her departure is nowhere specified.)

As to the earlier period, Bickerstaff declared that when he asked Santillana about the status of the case and/or the mediation, or conformity with deadlines, she assured him that there were no court dates set and that the case was awaiting a mediation date. He completely relied on Santillana to keep him abreast of the status of cases. She opened the mail and calendared events, appearances, and discovery.

Santillana's declaration was to much the same effect: she was responsible for opening the mail and calendaring, she concealed the dismissal from Bickerstaff, and gave false information when asked for a status report. She did not inform him of her actions until she returned from a trip to El Salvador on October 16, 2004.

The trial court denied the motion, finding that Bickerstaff's declaration addressed his secretary's conduct, but not his own failure to monitor the case despite his presence at a status conference where future dates were set, and despite his involvement in discussions with respondents' counsel about the discovery. The court concluded that "as the declarations are insufficient, the motion is denied." The court also ruled that to the extent that the motion was directed to the underlying order on the motion for terminating sanctions, it was untimely.

On this appeal, Thompson contends that the court erred because reinstatement of the complaint was mandatory, under the mandatory provisions of section 473, or in the alternative that the court abused its discretion under the discretionary provisions of that statute. Respondents reply that the mandatory provisions of section 473 do not apply to dismissals based on discovery sanctions, that the motion was untimely under both the mandatory and discretionary provisions, and that the trial court did not abuse its discretion under the discretionary proceedings because the neglect was not excusable neglect.

We agree with respondents that the motion was untimely.

The mandatory provisions of section 473 state that "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 attorney's 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, and which will result in entry of a default judgment, 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 attorney's mistake, inadvertence, surprise, or neglect."

Thompson relies on the fact that the motion was made within six months of the April entry of judgment. That is so, but the motion was not addressed to the April judgment, or at least not solely to the judgment, for an obvious reason: mere reversal of the judgment would accomplish nothing, because it would leave the dismissal intact. Thompson's motion asked the court to vacate the "order of dismissal and/or terminating sanctions," and although the motion says that the order was entered on April 23, 2004, it was not. The relevant order was made in October 2003, and as to that order, the motion was untimely under the mandatory provisions.

The discretionary provisions also include a six month time limit, providing that the motion "shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b).) This motion was not made within six months of the order or proceeding at issue, the dismissal order.

Finally, as respondents argue, nothing in the declarations Thompson submitted address the real neglect in this case, which took place in October and November of 2003, not the period prior to the April 2004 judgment. We cannot tell from the declarations when Santillana began to conceal information from Bickerstaff, but we can tell from the record that Bickerstaff knew that depositions were to go forward on September 15 and that discovery was due on September 11. He obviously knew that the depositions did not go forward and that he did not provide discovery. Similarly, he knew that a mediation was set for October 22 and that it did not take place due to his absence. Given all that information, he did not need Santillana, or even notice of the motion for terminating sanctions, to know that the case would not wait indefinitely, but was at risk of dismissal.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

TURNER, P. J.

MOSK, J., Concurring

I concur.

Plaintiff cited Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961 (Nacimiento) in support of her contention that the six month period provided by Code of Civil Procedure section 473, subdivision (b) began to run upon the entering of the judgment rather than from the date of the dismissal. In Nacimiento, the court held that the mandatory relief provision under Code of Civil Procedure section 473, subdivision (b) is not available when a party fails to request a hearing on the merits in a California Environmental Quality Act (CEQA) case due to attorney neglect. The court there noted â€