Summary
In Sweeting v. Chicago Title Company et al., supra, G051131 (hereafter "Sweeting 4"), we affirmed the November 24, 2014 judgment in favor of Chicago Title dismissing it from the action after its demurrer was sustained without leave to amend.
Summary of this case from Sweeting v. Chi. Title Ins. Co.Opinion
G043356
01-10-2012
ROBERT SWEETING, Plaintiff and Appellant, v. FREMONT REORGANIZING CORPORATION, Defendant and Respondent.
Robert Sweeting, in pro. per., for Plaintiff and Appellant. The Ryan Firm, Timothy M. Ryan and Michael W. Stoltzman, Jr., for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2008-00104237)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed.
Robert Sweeting, in pro. per., for Plaintiff and Appellant.
The Ryan Firm, Timothy M. Ryan and Michael W. Stoltzman, Jr., for Defendant and Respondent.
Plaintiff Robert Sweeting filed a first amended complaint against a number of named individuals and companies, including Fremont Investment and Loan, now known as Fremont Reorganizing Company (Fremont), and GMAC Mortgage LLC (GMAC), alleging 13 causes of action arising out of a refinance of his residence. The court sustained Fremont's demurrer to a number of causes of action in the complaint. Fremont then filed a motion for summary judgment. (Code of Civ. Proc., 437c; all unspecified section references are to that code.) Sweeting did not file a timely response, but was present at the hearing on the motion with an opposition he filed that day. The court granted summary judgment in favor of Fremont.
Sweeting filed a motion for relief "from default summary judgment." The superior court heard and denied Sweeting's motion and Sweeting appeals. We affirm.
I
FACTS
According to the complaint in this matter, Sweeting began discussing the refinancing of his residence with a business client of his who worked for Ramsey Group Financial Services in May 2006. The client was unable to complete the refinance and brought in Jason Kishaba to complete the loan. Kishaba worked for International Mortgage, a mortgage broker and escrow company. Sweeting alleged Kishaba changed the terms of the loan and he did not receive the amount of cash out of the loan that Kishaba had promised. Fremont loaned Sweeting $773,500 and secured the loan with a deed of trust on the property in December 2006. Sweeting alleged Kishaba told him the first month's mortgage payment would be made by International Mortgage, but that payment was never made. Fremont sold the loan to GMAC in July 2007, and GMAC sent Sweeting a notice of default in October 2007.
Sweeting's first attorney in this matter, Paul Carter, filed a first amended complaint against four named individuals (including Kishaba), Fremont, GMAC, another corporation, and 25 Does on March 24, 2008. The complaint alleged 13 causes of action arising out of the refinance, including inter alia, negligence, negligent misrepresentation, fraud, conspiracy, breach of contract, cancelation of a written document, quiet title, and conversion.
Fremont's demurrer was heard on May 28, 2008, while Carter was still Sweeting's attorney. The next day, at Carter's request, the superior court relieved him as Sweeting's counsel of record, leaving Sweeting without an attorney. Sweeting's second attorney, Kenneth Bray, substituted in as counsel of record on June 19, 2008.
Neither Sweeting nor Bray appeared at an August 2008 mandatory case management conference. As a result, the court set an order to show cause "re: Monetary/Terminating Sanctions." When neither Sweeting nor Bray appeared for the order to show cause hearing, the court dismissed the case without prejudice based on Sweeting's "apparent abandonment of his case." The dismissal was eventually set aside in January 2009, due to "attorney fault" (§ 473, subd. (b)) on the part of Bray, who represented that the "'apparent abandonment' may be the result of [his] conduct" and that he had not been fully paid by Sweeting, was closing down his office, and that new counsel would substitute in to represent Sweeting.
Although Bray had not been relieved as counsel of record and no substitution of attorney had been filed with the court, on February 2, 2009, another attorney, Michael J. Buley, filed an ex parte application on Sweeting's behalf seeking a temporary restraining order and a preliminary injunction to prevent GMAC from evicting Sweeting from his residence. Buley's declaration attached to the application asserted he was the attorney of record for Sweeting. The next day, Buley, Sweeting, and GMAC's counsel appeared in court on the ex parte application.
On February 4, 2009, the day after Sweeting appeared with Buley at the ex parte hearing, Sweeting filed a substitution of attorney, substituting Bray out as attorney of record. A substitution of attorney naming Buley as counsel of record was not filed until the end of February 2009. It appears that between February 4, 2009 and the end of February 2009, Sweeting was representing himself again. On June 4, 2009, Sweeting filed yet another substitution of attorney, substituting Buley out as attorney of record and again rendering himself in propria persona.
On June 25, 2009, Attorney Steven H. Hertz contacted Fremont's attorney. Hertz said he would appear as Sweeting's attorney and requested to continue Sweeting's deposition. Fremont's attorney stated a need for confirmation that Hertz was in fact Sweeting's attorney. Hertz faxed to Fremont's attorney a copy of a substitution of attorney signed and dated that same day by himself and Sweeting. Hertz said all future communications regarding Sweeting should be sent to him. At the end of July 2009 Fremont filed its motion for summary judgment. Fremont served Hertz with the motion and notice that the hearing on the motion was set for October 14, 2009.
Hertz thereafter filed seven amendments to the complaint, appeared with Sweeting at his deposition and in court, but did not file an opposition to Fremont's motion for summary judgment. Neither did he ever file the June 25, 2009 substitution of attorney. On September 25, 2009, Hertz appeared with Sweeting as counsel of record on Sweeting's motion to continue GMAC's separate motion for summary judgment. The court denied the motion to continue. That same day, Sweeting filed two substitutions of attorney. One substituted Hertz in as attorney of record. Unlike the unfiled substitution of attorney faxed to Fremont's counsel in June, this substitution was dated September 24, 2009. The other substitution of attorney form, also dated September 24, 2009, substituted Hertz out as attorney of record and returned Sweeting back to in propria persona status.
Three days after the hearing, on September 28, 2009, Sweeting wrote a letter to Fremont's attorney, the first sentence of which read: "As you know, Mr. Hertz may, or may not, be back as my attorney." The letter notified Fremont's attorney that Sweeting scheduled another ex parte motion to continue GMAC's summary judgment motion and the trial for September 30, 2009. At that hearing the parties agreed to continue GMAC's summary judgment motion to October 28, 2009.
On October 8, 2009, in anticipation of its motion for summary judgment to be heard six days later, Fremont filed a declaration of nonopposition to its motion. The declaration stated that as of that date Fremont had received no opposition to its motion for summary judgment. The next day Sweeting filed an ex parte motion he characterized as a reapplication "for a continuance of hearing on the GMAC and FREMONT's Motions for Summary Judgment." The court denied Sweeting's motion to continue the hearing on Fremont's summary judgment motion.
Sweeting filed an opposition to Fremont's motion for summary judgment, together with exhibits and his statement of disputed and undisputed material facts on the date of the hearing on the motion, October 14, 2009. The record on appeal does not contain the reporter's transcript from the hearing on Fremont's summary judgment motion and the October 14, 2009 minute order does not indicate whether the court considered Sweeting's untimely opposition.
The court granted Fremont summary judgment. Fremont filed the notice of entry of judgment on January 5, 2010. Sweeting filed what he entitled a "motion for relief from default summary judgment" on February 16, 2010. The motion alleged the failure to respond to Fremont's motion for summary judgment was the result of attorney fault, inadvertence, surprise or excusable neglect and that his right to due process was violated. The court denied Sweeting's motion on March 5, 2010. In doing so, the court found Sweeting had not demonstrated any mistake, inadvertence, surprise or excusable neglect. It also found Sweeting did not demonstrate attorney fault as no declaration from counsel had been filed. The court declined to treat the motion as a motion to reconsider under section 1008 because the motion was not timely. (See § 1008, subd. (a) [motion must be made "within 10 days after service upon the party of written notice of entry of the order" to be reconsidered].)
II
DISCUSSION
Sweeting argues the trial court erred in denying his request to continue the hearing on Fremont's motion for summary judgment. He contends the hearing on the motion should have been continued for two independent reasons. First, he asserts service of the moving papers on Hertz was improper. His opening brief maintains that "Sweeting was, and STILL is, the Attorney of Record from June 4, 2009, until the present." Second, Sweeting claims his recent amendments to the complaint, adding additional defendants, required him to conduct further discovery before replying to Fremont's motion.
Sweeting also contends the trial court erred in not granting his motion to set aside the judgment. He reiterates his argument that service on Hertz was improper and adds that if service on Hertz was proper, then he should have been granted relief because Hertz abandoned him. A. Denial of Sweeting's Motion to Continue
Sweeting contends the trial court erred in not continuing Fremont's motion for summary judgment. A trial court has broad discretion in granting or denying a continuance. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.) We therefore review the trial court's decision for an abuse of discretion. An abuse of discretion is demonstrated "only where the court's decision '"exceeds the bounds of reason, all circumstances being considered. [Citation.]"' [Citation.]" (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679-680 [abuse of discretion standard is the same in the civil and criminal arenas].)
1. Service on Attorney Hertz
Fremont served its motion for summary judgment and the notice of hearing on Hertz, as attorney for Sweeting. (See § 1015 ["in all cases where a party has an attorney in the action or proceeding, the service of papers, when required, must be upon the attorney instead of the party"].) Sweeting first contends a continuance was required because Fremont did not serve its moving papers on him, instead of Attorney Hertz. He argues that Hertz "was not legally the attorney of record, but [was] serving as associated counsel." His contention that Hertz was not his attorney is based upon the fact that the substitution of attorney he and Hertz signed in June 2009, substituting Hertz in as counsel of record, had not been filed with the clerk of the court. (§ 284 [attorney in an action may be changed upon consent of client and attorney, "filed with the clerk"].) According to Sweeting, as Hertz did not file the substitution of attorney form faxed to Fremont, Fremont was required to recognize "Sweeting as [in propria persona] and serve all moving papers on him." His argument is meritless.
Section 284 gives litigants the right to change attorneys at any time. The purpose of the statute is to have a clear record of representation "so that parties may be certain with whom they are authorized to deal. [Citation.]" (McMillan v. Shadow Ridge at Oak Park Homeowner's Assn. (2008) 165 Cal.App.4th 960, 965.) When a substitution of attorney has been filed with a court, any other party to that action should be entitled to rely upon the court's records as to who represents the party on whose behalf the substitution has been filed. (Ibid.) To that end, section 284 protects those who are not party to the substitution. (See In re Marriage of Wagner (1974) 38 Cal.App.3d 714, 720 [opposing party waives formal substitution of attorney requirement by dealing with attorney as if he or she is attorney of record].)
When Hertz contacted Fremont's attorney in an effort to obtain a continuance of Sweeting scheduled deposition, Fremont's attorney appears to have relied upon section 284 in initially refusing to recognize Hertz as Sweeting's attorney. To overcome reliance on section 284, Hertz and Sweeting signed a substitution of attorney dated that same day — June 25, 2009 — and faxed it to Fremont's attorney, intending that Fremont's attorney would rely on the form and recognize Hertz as Sweeting's attorney. The faxed substitution of attorney had the desired effect. Fremont's attorney acknowledged Hertz as Sweeting's attorney and granted Sweeting a continuance of his deposition. Sweeting cannot now be heard to claim Fremont was not entitled to rely upon his and Hertz's representations because neither Sweeting nor Hertz thereafter filed the substitution of attorney they faxed to Fremont. Moreover, Hertz subsequently filed amendments to the complaint as Sweeting's attorney, appeared in court as Sweeting's attorney, appeared with Sweeting as his attorney at Sweeting's depositions, and eventually filed a substitution of attorney, albeit one bearing a different date than the one faxed to Fremont's attorney. Additionally, on September 24, 2009, Sweeting testified that Hertz ceased representing him a week earlier, a substitution of attorney had not been filed, and that the parties have not been notified. He further testified he and Hertz were "working out" their arrangement and that Hertz intended to be at the next day's scheduled court appearance.
Sweeting led both the court and counsel to rely on his representation that Hertz represented him. Sweeting did not file a notice of association of counsel. Neither did he file a notice of limited representation with the court. (See Cal. Rules of Court, rules 3.35(a), 3.36(b).) To sustain Sweeting's challenge to the service of Fremont's moving papers caused by his representation to Fremont that Hertz was his attorney, would condone his trifling with the courts. This we will not do. Accordingly, we find Sweeting was properly served with Fremont's moving papers. (§ 1015.)
Additionally, we reject Sweeting's argument that the judge who heard one of his motions to continue GMAC's summary judgment motion and the trial, Judge Firmat, ruled that service of the GMAC and Fremont motions for summary judgment was ineffective. There is nothing in the record on appeal indicating the issue of Fremont's service was before the court, especially given the fact Sweeting moved to continue the hearing on GMAC's motion for summary judgment, not Fremont's. Additionally, the record on appeal does not include a transcript of the September 30, 2009 hearing when Judge Firmat made his ruling. (Ballard v. Uribe (1987) 41 Cal.3d 564, 574 [appellant required to provide adequate record to permit reviewing court to address issue raised by appellant].)
2. The Need to Conduct Further Discovery
Sweeting asserts his recent amendments to the complaint on September 9, 2009, adding a number of defendants required that he conduct further discovery before responding to Fremont's motion for summary judgment. His reliance on section 437c, subdivision (h) is misplaced. That section provides in pertinent part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (§ 437c, subd. (h).)
Sweeting fails to point out that Hertz filed the amendments.
As we noted before, "section 437c, subdivision (h) requires more than a simple recital that 'facts essential to justify opposition may exist.' The affidavit or declaration in support of the continuance request must detail the specific facts that would show the existence of controverting evidence. [Citations.]" (Lerma v. County of Orange, supra, 120 Cal.App.4th at p. 715.) "As this court stated in Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 with respect to section 437c, subdivision (h), 'The nonmoving party seeking a continuance "must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]" [Citation.]' Generally speaking, the party seeking the continuance must 'provide supporting affidavits or declarations detailing facts that would establish the existence of controverting evidence . . . . [Citation.]' [Citation.]" (Ibid.) The affidavit or declaration must detail the "particular essential facts that may exist that may exist and the specific reason why they cannot then be presented." (Id. at p. 716.)
Relevant to Sweeting's section 437c, subdivision (h) claim, his declaration merely stated that "several new parties were added as defendants on September 9, 2009," and he needs "additional discovery to weed out the relationships between the parties." There was no allegation of any particular fact essential to opposing the summary judgment motion and which may exist and be discovered from the newly added defendants. Sweeting failed to make the showing required to obtain a continuance under section 437c, subdivision (h). Accordingly, we find the trial court did not err in denying Sweeting's motion to continue Fremont's summary judgment motion. B. Sweeting's Section 473 Motion
Section 473, subdivision (b) "contains a discretionary provision, which enables a court to '"relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." [Citation.] . . . [¶] [It] also contains a "mandatory" or "attorney affidavit" provision,' which relieves a party 'if a default judgment or dismissal is the result of its attorney's mistake, inadvertence, surprise, or neglect, without regard to whether the neglect is excusable. [Citation.]' [Citation.]" (Jackson v. Doe (2011) 192 Cal.App.4th 742, 755.) Relief under the mandatory provision requires an affidavit or declaration by the attorney "attesting to his or her mistake, inadvertence, surprise, or neglect . . . ." (§ 473, subd. (b).)
Sweeting's motion to set aside the judgment alleged the court was required to grant relief based on attorney error, and that he anticipated filing a declaration by Hertz prior to the hearing on the motion. Sweeting never filed a declaration from Hertz, a prerequisite to obtaining relief under the mandatory provision of section 473, subdivision (b). Therefore, even if a summary judgment were subject to this mandatory relief provision (see Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228-229 [noting split of authority and holding mandatory provision of § 473, subd. (b) does not apply to summary judgments]), the lack of a declaration from counsel renders the mandatory relief provision inapplicable.
We now address the discretionary relief provision in section 473, subdivision (b). Although the law favors cases being heard on their merits and as a result, doubts in applying section 473 are resolved in favor of the moving party (Rappleyea v. Cambell (1994) 8 Cal.4th 975, 980), "[t]he standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118, fn. omitted.)
The trial court found Sweeting did "not demonstrate [] any mistake, inadvertence, surprise or excusable neglect that could not have been avoided by a reasonably prudent person based on the facts and the procedural history in this case." Excusable neglect is based on the "'reasonably prudent person standard' established by the Supreme Court in Bettencourt [v. Los Rios Community College Dist. (1986)] 42 Cal.3d 270." (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684.) The Legislature intended to provide relief when a mistake is "fairly imputable to the client, i.e., mistakes anyone could have made." (Id. at p. 682.) An attorney's failure, consisting of conduct that falls "below the professional standard of care," is not excusable. (Ibid.)
Sweeting argues that if Hertz was not his attorney, then he was never served with the moving papers. Alternatively, he asserts that if Hertz was his attorney, then Hertz abandoned him. According to Sweeting, he was entitled to relief either way. Having already found Hertz was Sweeting's attorney at the time Hertz was served with the motion for summary judgment and that service on Hertz was proper (ante, p. 8), we address Sweeting's alternative argument.
Sweeting argues for the first time on appeal that his attorney's "abandonment" justified the court vacating the judgment. "'Abandonment' may afford a basis for relief, at least where the client is relatively free of fault, but performance which is merely inadequate will not." (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 682.) Abandonment exists when an attorney's neglect is "so extreme as to constitute misconduct effectively ending the attorney-client relationship." (Ibid.)
"'"'[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]'" [Citation.] "Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. . . ." [Citation.]' [Citation.]" (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) Sweeting did not assert in his motion to vacate the judgment that his attorney abandoned him. His failure to do so forfeited this claim on appeal. (Ibid.)
In fact, Sweeting insisted "Hertz was never counsel of record," and that "Hertz represented [him] for less than 10 minutes."
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Lastly, Sweeting contends in a short two-paragraph argument that equitable considerations favor hearing his complaint on the merits. He has failed, however, to demonstrate any merit to his complaint against Fremont, any showing of mistake, inadvertence or excusable neglect, or in what way the trial court abused its discretion. (See Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1014-1015.) No miscarriage of justice occurred in this matter. (Cal. Const., art. VI, § 13; § 475.)
III
DISPOSITION
The judgment is affirmed. Fremont shall recover its costs on appeal.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O'LEARY, J.
MOORE, J.