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Court of Appeal:
Lawyer’s Admitted Error Didn’t Require Vacating Judgment
Opinion Says Failure to File Opposition to Demurrer, Without Client’s Knowledge, After Calling it ‘Tool to Beat Up’ Solo Practitioners Did Not Warrant Relief
By a MetNews Staff Writer
Div. Two of this district’s Court of Appeal held yesterday that an attorney’s failure to oppose the defendants’ demurrer to his client’s complaint without the plaintiff’s knowledge did not require vacating the ensuing dismissal under a statute mandating such relief where the judgment was based on a lawyer’s admitted “mistake, inadvertence, surprise, or neglect.”
The court found that Pacific Palisades attorney Dimitrios P. Biller (now deceased)—who called demurrers “a tool to…beat up” solo practitioners like himself and described the process as a “waste” of time—failed to file the opposition for tactical reasons, believing the complaint would withstand judicial scrutiny.
At issue is mandatory-relief provision of Code of Civil Procedure §473(b), which provides:
“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment…and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…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.”
Seeking relief under the section was plaintiff 1 Touch Office, which filed a complaint in June 2021 against defendants Jennifer Hines and Hines Reporters Inc., among others, asserting breach of contract and other causes of action relating to an agreement for copy services. The complaint alleges a conspiracy between the Hines parties and a former employee of 1 Touch, whom it alleges stole client lists to build a base for his own business.
Demurrer Process
Biller, during a hearing on a defense request for an extension of time to file the demurrer, remarked:
“[I]t’s been my experience over the last five years that everybody wants to file a demurrer. I’m a solo practitioner. I don’t have any help, and I have spent a lot of time opposing demurrers that should not be filed. And a demurrer should be filed only if the complaint is insufficient, and I don’t file insufficient facts in my complaint.”
The defendants filed the demurrer on Sept. 16, 2021. Los Angeles Superior Court Judge William F. Fahey sustained it, granting leave to amend only as to the breach of contract claim.
After the plaintiff filed an amended complaint, the defendants again filed a demurrer on Nov. 23, 2021 to which Biller failed to respond. On Dec. 16, 2021, Fahey sustained the demurrer as to the Hines parties without leave to amend, noting that it was unopposed and the arguments by the defendants were “well-taken.”
In March 2022, an officer with 1 Touch discovered that a judgment of dismissal had been entered. The company retained new counsel and moved to set the judgment aside under §473.
At the plaintiff’s request, Biller filed a declaration admitting fault.
Fahey denied the motion to set aside the judgment, finding that the failure to oppose was a tactical decision and not a “mistake, inadvertence, surprise, or neglect” as required by the code section.
Acting Presiding Justice Judith Ashmann-Gerst wrote the unpublished opinion affirming the judgment. Justices Victoria M. Chavez and Brian M. Hoffstadt joined in the opinion.
Relieve Innocent Client
Ashmann-Gerst noted that the purpose of §473(b) is to relieve the innocent client of the burden caused by an attorney’s error but said that the section was never intended to be a “catch-all” remedy for every case involving poor legal judgment.
Considering the facts surrounding the failure to oppose, she wrote:
“[T]here is no evidence that Biller’s failure to oppose defendants’ demurrer to the FAC was the result of inadvertence, surprise, mistake, or neglect (either inexcusable or excusable)…..Rather, the evidence supports the trial court’s finding that Biller chose not to oppose the demurrer for tactical reasons.”
She continued:
“When he declined to give defense counsel an extension to file anything but an answer to the complaint, Biller indicated that he did not want to ‘waste…time’ opposing a demurrer. At the hearing on defendants’ ex parte application for an extension of time, Biller reiterated that he has seen too many demurrers and did not want to oppose a demurrer when the complaint (in his opinion) was sufficient. Later, when defendants indicated their intent to demur to the [amended complaint], Biller steadfastly and repeatedly informed defense counsel that such a demurrer was procedurally improper. Taken together, this evidence supports the trial court’s finding that Biller’s decision not to oppose defendants’ demurrer to the FAC was an intentional, arguably strategic decision, and not the result of mistake, surprise, inadvertence, or excusable neglect.”
The jurist added:
“Furthermore, after reviewing Biller’s declaration filed in support of the section 473 motion, we agree with the trial court that he did not honestly and wholly accept responsibility for failing to oppose defendants’ demurrer. While he did concede that he erred in not filing an opposition, he also continued to insist that the demurrer was improperly filed.”
Cause of Dismissal
Ashmann-Gerst pointed out that the statute limits relief to dismissals which are the procedural equivalent of a default judgment and remarked that “Biller’s failure to file an opposition to defendants’ demurrer did not cause the dismissal.”
Turning to the order sustaining the demurrer, she said:
“[I]n its order sustaining defendants’ demurrer to the FAC, the trial court noted plaintiff’s lack of opposition. But, as the trial court expressly stated, it found that defendants’ arguments, which were similar to those raised in the original demurrer given that the allegations of the original complaint were nearly identical to those in the FAC, had merit. Thus, the trial court sustained the demurrer on those substantive grounds.”
Finding that the dismissal was “hardly the equivalent of a default,” she concluded that “the trial court did not dismiss plaintiff’s action solely because Biller failed to file an opposition; it dismissed plaintiff’s complaint because it found the arguments in defendants’ demurrer to be meritorious.”
Language Used
The opinion quotes from Biller extensively, at one point noting an email from Biller to defense counsel saying:
“What are you a third year lawyer?....I am not obligate[d] to jump when you say jump. You[r] lack of effort to [‘]meet and confer[’] is evident in you[r] papers. Why do you think you can write stuff not in the record?....You[r] ex parte and your demurrer will be fin[e] examples to the court of appeals. You have taken this and blown it out of proportion….Keep on playing dirty, it only makes for a better record[]. Now I have to call coverage counsel.”
Biller had served as in-house counsel to Toyota Motor Corp. and made news in 2011 after the automaker sued him in the U.S. District Court for the Central District of California, alleging that he revealed confidential information in classes on legal discovery the lawyer taught after leaving the company.
He countersued, alleging that the carmaker hid evidence in product safety litigation. The company vigorously denied the allegations and was awarded a $2.6 million judgment in arbitration.
The case decided yesterday is 1 Touch Office v. Hines, B323401.
1 Touch was represented by Behzad Ben Mohandesi, Sara Elizabeth Stratton, and Lisa Marie Lawrence of the downtown Los Angeles firm Yu | Mohandesi LLP. Randall Allen Miller and Jeanette Chu of the Los Angeles area firm Miller Law Associates acted for the defendants.
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