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Intra-District Split Created Over Mandatory-Relief Statute
Second District Court of Appeal Justice John L. Segal Writes for Div. Seven in Repudiating View of Div. Four Expressed in 2005 That ‘Bad Strategy’ by Lawyer Does Not Constitute ‘Mistake, Inadvertence, Surprise, or Neglect’
By a MetNews Staff Writer
Div. Seven of the Court of Appeal for this district held yesterday that where the lawyer for a cross-defendant filed a declaration seeking a 30-day extension within which to respond to the cross complaint rather than proving a timely answer and a default was entered, a client who was faultless was entitled to relief under the mandatory provision of Code of Civil Procedure §473(b) based on the attorney’s affidavit of fault.
In so holding, Div. Seven created a conflict within the district, repudiating the 2005 decision by Div. Four in Jerry’s Shell v. Equilon Enterprises, LLC. There, Los Angeles Superior Court Judge Malcolm Mackey (now deceased) ordered dismissal of a case based on a lawyer’s repeated failure to respond to discovery requests, then denied a motion for relief under §473(b).
In an opinion affirming the order, Justice Daniel A. Curry (since deceased) declared that “[w]e conclude that dismissal was the result of an intentional strategic decision on the part of appellants’ counsel” and that the requisite of the mandatory-relief provision of §473(b)—an attorney’s admitted “mistake, inadvertence, surprise, or neglect”— was therefore not met.
Fourth District Decision
Writing for Div. Seven, Justice John Segal opted not to follow Jerry’s Shell, but instead to embrace the 2005 Court of Appeal decision by the Fourth District’s Div. Two in Solv-All v. Superior Court. In that opinion—allowing relief despite an attorney having deliberately not filed a timely response to a complaint—Acting Presiding Justice James D. Ward zeroed in on the word “neglect,” saying:
“Although in our body of law the term ‘negligence’ implies a careless, but unintentional, failure to act with due care, the word ‘neglect’ is less limited. A child or dog, for example, may be intentionally ‘neglected.’ ”
Understanding “neglect” to connote “carelessness or intention,” he said, “most effectively carries out the legislative purpose in enacting the ‘attorney fault’ provisions,” commenting:
“From the client’s point of view, it doesn’t matter a whit whether the default was due to gross carelessness or bad strategy; either way, the client is the one stuck with the judgment resulting from the attorney’s error. In both cases, it is the attorney’s ‘neglect’ to carry out his duty to his client that causes the problem. In both cases, the client should be entitled to relief if the attorney admits that the inaction was his responsibility.”
Kim’s Ruling
Yesterday’s opinion reverses a default judgment by Los Angeles Superior Court Judge Mark C. Kim who denied relief under §473(b) to a medical doctor, Kamran Ghadimi whose lawyers did not file a timely response to a cross-complaint. The doctor had agreed orally to settle a dispute with an ex-patient, Eileen Talbott, then backed out of the accord, and was sued was by her for breaching the settlement terms.
Kim said the evidence shows that the decision by Ghadmi’s lawyers “not to file a timely answer and instead to file a declaration re: extension of time was a litigation strategy, not a mistake or the result of neglect.”
Disagreeing, Segal wrote:
“[W]e follow Solv-All v. Superior Court…, where the court held a defendant may be entitled to relief under the mandatory provision of section 473, subdivision (b), even where the attorney makes a bad strategic decision, rather than Jerry’s Shell v. Equilon Enterprises, LLC…, where the court held such relief may not be available in that situation.”
He explained:
“Like the defendant in Solv-All, Ghadimi was entitled to relief under the mandatory provision of section 473, subdivision (b), because he did not participate in his lawyers’ purported ‘bad strategy’…to delay answering Talbott’s cross-complaint.”
The jurist added:
“We do not suggest it is acceptable for counsel to make false or misleading statements in declarations submitted to the court, nor do we condone any gamesmanship and lack of candor on the part of counsel for Ghadimi. However, under the mandatory provision of section 473, subdivision (b), default is not an appropriate punishment for clients whose lawyers may have engaged in misconduct. And the conduct of counsel for Ghadimi was not without consequences. When the court grants mandatory relief based on an attorney’s affidavit of fault, section 473, subdivision (b), requires the court to ‘direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.’ In addition, the court may impose a penalty up to $1,000, direct the attorney to pay up to $1,000 to the State Bar Client Security Fund, or grant ‘other relief as is appropriate.’…The trial court here may consider what relief is appropriate.”
Segal’s opinion also reverses Kim’s postjudgment order awarding $5,425 in attorney fees to Talbott.
The case is Talbott v. Ghadimi, B329889.
Jeremy J. Alberts, J. Michael Echevarria and Randell Y. Hong of BWA Law Group in Santa Ana were attorneys on appeal for Talbott. Joshua Bordin-Wosk, and Christopher Blanchard of Bordin Semmer LLP—the firm that represented Kamran Ghadimi and Advanced Pain Treatment Medical Center in the trial court—acted for the cross-defendants in the Court of Appeal.
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