Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG06258150
Sepulveda, J.
A son sued his mother seeking to enforce an alleged oral promise to devise real property to him upon his parents’ deaths. The mother was represented by an attorney who abandoned her and other clients. The attorney was disbarred for his misconduct. The attorney’s neglect resulted in the mother sustaining discovery sanctions precluding her from offering any evidence denying the son’s claims. The mother then suffered an adverse summary judgment, and she moved to set aside the evidentiary sanctions and judgment. The court denied the motion, finding that the mother should have done more to monitor her attorney. We reverse the order. The mother was sufficiently diligent in monitoring her case and reasonably relied upon her attorney to represent her interests. The trial court abused its discretion in allowing the mother to be penalized for the attorney’s egregious misconduct.
I. Facts
Plaintiff Hasim Khan Dean (Son) is the son of Sardar Dean (Father) and defendant Hafijan Khan Dean (Mother). Father and Mother established a living trust for the future benefit of all their children, Son Hasim and four daughters. Father and Mother owned a San Leandro residence that was purchased in 1992. In 2004, Father and Mother transferred their residence into the family trust. Father died in December 2005.
In March 2006, Son sued Mother seeking to enforce an alleged oral promise to devise the San Leandro residence to him, as his sole property, upon his parents’ deaths. Son alleged that he contributed to the down payment on the house and contributed to six years of mortgage payments, and that his parents agreed that ownership of the property would pass to him upon their deaths. Mother denies ever agreeing to devise the property to Son.
A. Attorney misconduct leads to entry of judgment
Mother hired an attorney, David Stein, to defend her in the litigation. Stein filed an answer to the complaint in April 2006, but did almost nothing else on the case. In April 2006, Son’s attorney served a request for production of documents that went unanswered, as did most efforts to contact Stein about his dereliction. In July 2006, Son’s attorney filed a motion to compel production of documents and to obtain monetary sanctions. Stein filed no opposition and did not appear at the hearing. In August 2006, the court compelled the production of documents and awarded monetary sanctions against Mother and her attorney, Stein. Stein faxed a response to the document request in August 2006 but never sent a verified response and never sent the promised documents despite repeated demands. In October 2006, Son filed a motion to compel compliance with the order compelling production of documents. Stein filed no opposition and did not appear at the hearing. The motion was granted in November 2006 with an award of additional monetary sanctions.
Stein also failed to respond to form interrogatories. The interrogatories were served in July 2006. Son, through counsel, filed a motion to compel a response in August 2006. The motion was taken off calendar upon Stein’s promise to respond but, ultimately, Stein faxed only a partial response, and the motion to compel a response to interrogatories was renewed in October 2006. Son sought monetary sanctions against Stein, stating the belief that “it is opposing counsel who is causing these repeated delays.” Stein filed no opposition to the motion and did not appear at the hearing. The court granted the motion to compel answers to interrogatories and awarded monetary sanctions against both Mother and her attorney, Stein.
Stein never complied with the orders compelling production of documents and answers to interrogatories. In December 2006, Son filed a motion for terminating sanctions that detailed Stein’s “systematic pattern of discovery abuse.” In response to the motion, Stein filed an untimely declaration of fault in which he agreed to pay sanctions and asked for 30 days to bring the case into conformity with the discovery orders. Stein admitted that “[t]he failure to act timely was due entirely to my own mistake, inadvertence and neglect, ” the exact nature of which was unstated. Stein vaguely referred to “neglect on my part due to ongoing issues in my home” in his declaration filed in February 2007. In a cursory case management statement filed about the same time, Stein said “personal issues” caused his failure to respond to discovery requests. (Capitalization altered.) The court denied the motion for terminating sanctions and gave Stein additional time to comply with the discovery orders. The court cautioned that “failure to comply with this Order will very likely result in the imposition of terminating, issue, or evidentiary sanctions.”
Stein never complied. In March 2007, Son filed another motion for terminating sanctions or, in the alternative, issue and evidence sanctions. Stein filed a short, rambling declaration in opposition to the motion that did nothing to address the pertinent issues. Stein did not appear at the hearing. In April 2007, the court granted Son’s motion for evidentiary sanctions. The court precluded Mother from offering any evidence denying Son’s claims stated in the complaint.
In November 2007, Son moved for summary judgment. Son argued that the evidence sanctions, in conjunction with his proof of claims, “results in there being no triable issue as to any material fact” thus entitling him to summary judgment. Stein filed no opposition but, on the January 23, 2008 hearing date, filed a declaration requesting a continuance. Stein declared that he was suffering from “an anxiety disorder.” Stein said he had been hospitalized several times since October 2007, that he was unable to leave his home due to anxiety attacks, and was working only 15 hours or fewer per week. Stein also said he was “unable to move cases to healthy attorneys due to [his] inability to deal with the realities of [his] failing health and practice.” However, Stein declared that he believed he could resume his duties in the coming months and asked for a 60-day continuance of the summary judgment hearing. The court granted the continuance motion and set the matter for March 2008. But Stein never filed an opposition to the summary judgment motion and did not appear at the rescheduled hearing. On March 14, 2008, the court granted Son’s summary judgment motion. In May 2008, the court entered a judgment decreeing that the San Leandro property belongs to Son in its entirety in fee simple upon Mother’s death. Stein was served with notice of entry of judgment but took no action in the case.
B. The motion for equitable relief
In August 2009, Mother, represented by another attorney, filed a motion for an order setting aside the evidence sanctions and summary judgment upon assertions that Stein had abandoned her as a client, as he had other clients, and was facing disbarment for his misconduct. State Bar records show that defendant abandoned a number of clients, was suspended from the practice of law on May 9, 2008 (days after entry of judgment in this case), and ultimately disbarred on December 24, 2009.
Mother submitted a declaration in which she explained that she relied upon Stein to defend the litigation and was unaware of his neglect and the sanctions it generated. Mother came to the United States from Fiji, and speaks Hindi. She speaks very limited English. Mother declares that, when she hired Stein in the spring of 2006 and paid him a retainer, he “assured [her] that he would call [her], as the case required.” After hiring Stein, Mother visited his office twice in April 2006 and provided documents to him. It was in April 2006 that Stein filed an answer to the complaint.
Mother declares that she paid additional money to Stein in August 2006, and, at that time, Stein told her that there would be a court date in November 2006, and he would call with the exact date. In reality, Stein was already failing in his discovery obligations by August 2006, but he concealed this fact from his client. Stein had been ordered to comply with document requests and sanctioned for his prior failure to do so on August 14, 2006, five days before assuring Mother that there was nothing happening in the case.
In November 2006, Mother’s daughters, at her request, telephoned Stein’s office and left messages to call and report on the status of the case. After two weeks, Stein called and said the November 2006 court date was rescheduled to 2007. In fact, by November 2006 Stein had been sanctioned for failing to respond to document requests and a court order, and the court was threatening terminating sanctions. Stein was also facing a motion to compel answers to interrogatories.
In May 2007, Stein told one of Mother’s daughters that there was a court date scheduled for June 22, 2007, but he called her later to say that the date was continued to “sometime in 2008.” The reality was that, by May 2007, the court had issued evidence sanctions that effectively ended any hope of a defense. Months earlier, in January 2007, Stein had told the court that he was having personal problems that were preventing him from meeting his obligations, but Stein did not inform Mother about his neglect or the sanctions imposed against her.
Mother contacted Stein’s office again in September 2007, and Stein’s assistant said Stein was busy on other cases. Mother’s daughters called Stein’s office multiple times from October 2007 through 2008. The daughters filed a declaration stating that Stein “never returned any of our calls in 2007 or 2008 other than to say that a court date was cancelled and his employee simply stated that he would call back.” Stein did not tell Mother that Son had filed a motion for summary judgment in November 2007, nor that Stein was suffering from a disabling anxiety disorder.
In March 2008, Mother suffered a stroke and Son visited her in the hospital. The visit was one of the two times Mother had seen Son since he filed suit against her two years earlier. Son said nothing about the lawsuit—not the discovery sanctions imposed against her, nor the summary judgment motion that was decided at or about the time of Son’s hospital visit.
Mother declared that she first learned that Son obtained a judgment against her in July 2009 when, at a family gathering at a daughter’s house, Son said the San Leandro house was his property. That same day, Mother asked her daughter, a realtor, to use her computer to check on the property. The daughter reported that Son had obtained a judgment against Mother in May 2008, while Mother was still recovering from her stroke. Mother says she was “absolutely shocked at the news and resolved to have the case reviewed by a new attorney.” Mother retained a new attorney and in August 2009, within 30 days of discovering that judgment had been entered against her, filed a motion to set aside the discovery order and summary judgment.
The trial court denied the motion. The court accepted Mother’s claim that her attorney abandoned her as a client but found that Mother was not diligent in monitoring her case. The court stated: “This issue isn’t how outrageous Mr. Stein was. We know how outrageous Mr. Stein was and he was disbarred. But the defendant [Mother] did not follow her case. It was months and months—a lot of Mr. Stein’s clients figured it out. But that notwithstanding, it was a very, very long time before she even inquired, notwithstanding her health. So the responsibility is on her in some part to do something and to also inquire, find out what’s going on and take some affirmative action to get her case squared away or find out what’s going on with her lawyer, make some inquiries, basically take some action.” Mother filed a timely appeal from the court’s order.
II. Discussion
A. General principles
A court has inherent equity power to grant relief from a judgment procured by extrinsic fraud or mistake. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 5.435, pp. 5-104.6-104.7 (rev. #1, 2009).) Generally, a party seeking equitable relief from a judgment must show a satisfactory excuse for not presenting a defense (i.e., extrinsic fraud or mistake); the existence of a meritorious case; and diligence in seeking to set aside the judgment once the fraud or mistake is discovered. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-983; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738 (Aldrich)). We review an order denying equitable relief from a judgment for abuse of discretion. (Rappleyea, supra, at p. 981.)
The terms extrinsic fraud and mistake “are given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342.) It does not matter “if the particular circumstances qualify as fraudulent or mistaken in the strict sense.” (Ibid.) Extrinsic mistake has been found when there was party reliance on an attorney who becomes incapacitated to act (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472), or where the attorney’s positive misconduct deprives his client of a hearing (Aldrich, supra, 170 Cal.App.3d 725, 738-739). “Positive misconduct is found where there is a total failure on the part of counsel to represent his client.” (Id. at p. 739.)
Equitable relief will not be granted if the client was guilty of negligence in permitting the mistake to occur. (Wilson v. Wilson (1942) 55 Cal.App.2d 421, 427.) Clients are not, however, required to act as inquisitors of their attorneys. (Aldrich, supra, 170 Cal.App.3d at p. 740.) “ ‘Clients should not be forced to act as hawklike inquisitors of their own counsel, suspicious of every step and quick to switch lawyers. The legal profession knows no worse headache than the client who mistrusts his attorney. The lay litigant enters a temple of mysteries whose ceremonies are dark, complex and unfathomable. Pretrial procedures are the cabalistic rituals of the lawyers and judges who serve as priests and high priests. The layman knows nothing of their tactical significance. He knows only that his case remains in limbo while the priests and high priests chant their lengthy and arcane pretrial rites. He does know this much: that several years frequently elapse between the commencement and trial of lawsuits. Since the law imposes this state of puzzled patience on the litigant, it should permit him to sit back in peace and confidence without suspicious inquiries and without incessant checking on counsel.’ ” (Id. at p. 739, quoting Daley v. County of Butte (1964) 227 Cal.App.2d 380, 392.)
In Aldrich, the court of appeal held that relief from dismissal was properly granted where plaintiff’s lawyer failed to respond to discovery requests or to oppose a motion to dismiss for failure to respond, and was suspended by the State Bar shortly before the dismissal was granted. (Aldrich, supra, 170 Cal.App.3d at pp. 731-732.) The court noted that plaintiff, who made a limited number of telephone calls to his attorney to check on the status of the case, “did not assiduously seek out his attorney.” (Id. at pp. 733-735, 739-740.) But the court found that plaintiff was not required to “perform incessant checking on counsel” and, moreover, was entitled to relief even upon a weak showing that he was free of negligence in allowing the dismissal to occur because plaintiff made a strong showing of diligence in seeking relief after discovery of the facts, and the other party was unable to show prejudice from the delay. (Id. at p. 740.)
Other cases have likewise affirmed the propriety of granting relief from adverse orders and judgment caused by attorney misconduct. In People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584, this District Court of Appeal affirmed an order granting equitable relief from a default judgment where defendant’s attorney’s showed “a total failure to represent his client” by failing to return his client’s telephone calls and to oppose the default judgment motion. In Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 352-356, the court of appeal reversed the trial court’s denial of a motion for equitable relief from a default judgment where the party’s attorney failed to file an answer or to seek relief from the judgment. Similarly, in Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 204-208, a trial court’s denial of relief was reversed where dismissal for failure to prosecute resulted from an attorney’s abandonment of her client in failing to advance the case and to oppose a dismissal motion. The client had not contacted the attorney in the two years between filing the action and its dismissal, but the court found the client’s lack of vigilance insufficient to deny relief. (Id. at pp. 205-206.) The court found that “ ‘two years of reliance on the attorney was understandable and justifiable’ ” under the circumstances. (Id. at p. 206.)
B. The trial court abused its discretion in denying equitable relief
The trial court abused its discretion in denying equitable relief because defendant Mother showed a satisfactory excuse for not presenting a defense, the existence of a meritorious case, and diligence in seeking to set aside the judgment once the mistake was discovered. (See Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982 [setting out elements].) Mother had a satisfactory excuse for failing to answer discovery and oppose the summary judgment motion. An extrinsic mistake occurred: Mother was represented by an attorney who engaged in positive misconduct, abandoned her and other clients, and was disbarred for his misconduct.
As described in detail above, Mother’s attorney, Stein, did almost nothing on the case after filing an answer to the complaint in April 2006. A request for production of documents went unanswered, as did most efforts by opposing counsel to contact Stein about discovery. When a motion to compel production of documents was filed, Stein filed no opposition and did not appear at the hearing. Stein did not comply with the order and did not appear at a later hearing to compel compliance with the order. Stein also failed to respond to form interrogatories, to oppose a motion seeking a response, or to comply with an order compelling a response. Stein did little to oppose a motion for terminating, issue, or evidence sanctions brought for his discovery abuses, apart from filing a rambling declaration. Stein did not appear at the hearing, and the court granted Son’s motion for evidentiary sanctions, precluding Mother from offering any evidence denying Son’s claims stated in the complaint. A motion for summary judgment followed and Stein’s only action was to obtain a continuance based on his “anxiety disorder.” Stein never filed an opposition to the summary judgment motion and did not appear at the rescheduled hearing. When the court entered a judgment in Son’s favor in May 2008, Stein did nothing. A clearer case of positive misconduct by an attorney is hard to imagine.
The trial court here acknowledged Stein’s “outrageous” conduct but found that Mother was not sufficiently diligent in monitoring her attorney, thus permitting the mistake to occur. We see no lack of diligence that warrants denial of equitable relief. A client is not “required to act as a ‘hawklike inquisitor’ of his [or her] own counsel, nor perform incessant checking on counsel.” (Aldrich, supra, 170 Cal.App.3d at p. 740.) Mother, with the assistance of her daughters, contacted Stein “a number of times” from initiation of the action in March 2006 through 2008. When he was first retained, Stein promised Mother that he would call her if there were any developments. Mother called Stein from time to time to check on the case, only to be put off with statements that Stein was busy or court dates were being rescheduled.
A comparison of Stein’s statements to Mother with the actual proceedings in the trial court show that Stein actively concealed facts about the litigation from Mother. As noted above, Stein told Mother in August 2006 that there would be a court date in November 2006, and he would call with the exact date. By that time, Stein was already failing in his discovery obligations by August 2006. Stein had been ordered to comply with document requests and sanctioned for his prior failure to do so, on August 14, 2006, five days before assuring Mother that there was nothing happening in the case. When Mother asked Stein to report on the status of the case in November 2006, Stein said the November 2006 court date was rescheduled to 2007. In fact, by November 2006, Stein had been sanctioned for failing to respond to document requests and a court order, and the court was threatening terminating sanctions. In May 2007, Stein told one of Mother’s daughters that there was a court date scheduled for June 22, 2007, but called later to say that the date was continued to “sometime in 2008.” The reality was that, by May 2007, the court had issued evidence sanctions that effectively ended any hope of a defense. While a client is reasonably charged with monitoring his or her case, a client cannot be expected to ferret out attorney deception and should not suffer an adverse judgment if he or she fails to puncture an attorney’s veil of deceit. It is true, of course, that Mother could have been more vigilant. She could have, for example, asked her English-speaking daughters to go to the courthouse to read the docket and verify Stein’s representations. But high vigilance of that nature is not a prerequisite for equitable relief. Mother’s efforts at monitoring her case were adequate, as judged by other cases affirming a client’s right to equitable relief from a judgment caused by an attorney’s positive misconduct or abandonment. (E.g., Seacall Development, Ltd. v. Santa Monica Rent Control Bd., supra, 73 Cal.App.4th at pp. 205-206; Aldrich, supra, 170 Cal.App.3d at p. 740.)
Mother also met the other requirements for obtaining equitable relief from a judgment: the existence of a meritorious case and diligence in seeking to set aside the judgment once the mistake was discovered. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982 [setting out elements].) Only a minimal showing is necessary to establish a meritorious case in the context of a motion for relief. “[A] verified answer to a complaint’s allegations suffices to show merit[, ]” as does an unverified answer denying the complaint’s allegations coupled with a declaration stating the existence of a defense. (Id. at p. 983.) Here, Mother’s unverified answer denies the material allegations of the complaint and Mother’s declaration disputes Son’s right to inheritance of her home and sets forth specific facts establishing a prima facie defense. Mother also showed diligence in seeking relief. Mother first learned that Son obtained a judgment against her in July 2009. Mother retained a new attorney and in August 2009, within 30 days of discovering that judgment had been entered against her, filed a motion to set aside the discovery order and summary judgment. Mother is entitled to relief.
III. Disposition
The order denying equitable relief is reversed. The case is remanded with directions to grant the motion, and to set aside the April 19, 2007 order granting evidentiary sanctions, the March 14, 2008 order granting summary judgment, and the May 5, 2008 judgment. Appellant shall recover costs incurred on appeal upon timely application in the trial court. (Cal. Rules of Court, rule 8.278(c)(1).)
We concur: Ruvolo, P. J., Rivera, J.