California

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION ONE

November 29, 2004, Filed

NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT 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 THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

PRIOR HISTORY: APPEAL from an order of the Superior Court of Los Angeles County, No. PC025386Y. Howard J. Schwab, Judge.

DISPOSITION: Affirmed.

COUNSEL: George Frangie, in pro. per.; Kaplan, Kenegos & Kadin and David Scott Kadin for Plaintiff and Appellant.

Rosen & Associates, Robert C. Rosen, John B. Wallace and David Paul Bleistein for Plaintiffs and Respondents Iris Limited Partnership and Iris Investors Group, LLC.

JUDGES: SUZUKAWA, J.; MALLANO, Acting P.J., VOGEL, J. concurred.

OPINIONBY: SUZUKAWA

OPINION: We affirm the postjudgment order denying relief under Code of Civil Procedure section 473, subdivision (b).

BACKGROUND

In the trial court, appellant George Frangie and respondents Iris Limited Partnership and Iris Investors Group, LLC, (jointly, "Iris"), were aligned as plaintiffs against defendant Allan Boren, who is not a party to this appeal. Frangie and Iris obtained separate [*2] money judgments against Boren in 2001.

To enforce their respective judgments, Frangie and Iris filed separate postjudgment motions for charging orders against Boren's partnership interests in KB Lakeside Associates and KB Jamul Associates ("the KB partnerships"). Code of Civil Procedure section 708.310 provides: "If a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor's interest in the partnership or limited liability company may be applied toward the satisfaction of the judgment by an order charging the judgment debtor's interest pursuant to Section 15673 [limited partnership interest], 16504 [partner's transferable interest], or 17302 [assignable membership interest] of the Corporations Code." (All further statutory references are to the Code of Civil Procedure.)

Under section 708.320, subdivision (a), the service of a notice of motion for a charging order on the judgment debtor and the partnership's partners creates a lien on the judgment debtor's interest in the partnership. Section 708.320, subdivision (b) provides: "If a charging order is issued, the lien created pursuant to subdivision [*3] (a) continues under the terms of the order. If issuance of the charging order is denied, the lien is extinguished."

Given that Frangie was the first to serve a notice of motion for a charging order, his lien had priority over Iris' lien. Before the November 7, 2002, hearing on Frangie's motion for a charging order, however, Frangie's counsel took Frangie's motion off calendar. Frangie's counsel then filed and served a new motion for a charging order to be heard on December 10, 2002, the same date as Iris' motion for a charging order. Frangie's counsel did this to accommodate the KB partnerships' request that both charging order motions be heard on the same date.

The unintended consequence of taking Frangie's first motion off calendar and filing and serving a second motion was that it switched the priority of the liens held by Frangie and Iris. Given that Iris' notice of motion was served before Frangie's second notice of motion was served, Iris' lien was now senior to Frangie's second lien.

According to Frangie's opening brief, "when other counsel at the firm that represented Frangie saw this and that it would affect priority of Frangie's charging order lien, counsel for Frangie [*4] filed [an Ex Parte Application] to Restore the November 7th Motion Nunc Pro Tunc and continue it to the December 10th hearing on the grounds of the attorney's mistake and inadvertence."

After the trial court denied Frangie's ex parte application for relief, Frangie moved for relief under section 473, subdivision (b). n1 Frangie requested that "the court . . . restore the November 7, 2002[,] hearing date nunc pro tunc and . . . continue the hearing on Plaintiff GEORGE FRANGIE'S Motion for Charging Order against Defendant/Judgement Debtor ALLAN BOREN'S partnership interests to December 10, 2002." Ms. Shojapour, the attorney who mistakenly took Frangie's first motion off calendar, filed a declaration of fault which stated in part: "For judicial economy, I agreed to continue the November 7 Motion to the December 10 date of Iris' Motion. [P] . . . However, instead of continuing the November 7, 2002[,] hearing to December 10, 2002, I mistakenly took the motion off calendar to re-file the motion for December 10. This was inadvertent, mistaken and/or neglectful. The November 7 Motion was already timely served, I should have continued it. [P] . . . Because of my mistake, inadvertence [*5] and/or neglect, I respectfully request that the Court restore the November 7, 2002[,] hearing on the Motion nunc pro tunc, and continue it to December 10, 2002."

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n1 "(b) The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. . . . Notwithstanding any other requirements of this section, 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. . . ."

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At the December 10, 2002, hearing, the trial court denied Frangie's motion for relief on the ground that section 473, subdivision (b) does not apply to an attorney's erroneous decision to take a motion off calendar. The trial court granted the parties' respective motions for charging orders against Boren's interests in the KB partnerships, with Iris' lien having priority over Frangie's lien.

After the trial court entered its written order denying Frangie's section 473 motion on April 14, 2003, Frangie timely appealed from the April 14 order.

DISCUSSION

I. APPEALABILITY OF THE APRIL 14 ORDER

As stated in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, "despite the inclusive language of . . . section 904.1, subdivision (b), not every postjudgment order that follows a final appealable judgment is appealable. To be appealable, a postjudgment order must satisfy two additional requirements." (Id. at p. 651, fn. omitted.) "The first requirement . . . is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment. [Citation.]" (Ibid.) "The second requirement [*7] . . . is that 'the order must either affect the judgment or relate to it by enforcing it or staying its execution.' [Citation.]" (Id. at pp. 651-652.)

Iris contends the April 14 order is not appealable under section 904.1, subdivision (b) as an order made after an appealable judgment because it does "not relate to enforcement of Frangie's Judgment. Frangie's rights to enforce his Judgment against Boren have not been limited by the denial of his Motion to Restore. If anything, the Appealed Order would relate to the priority between creditors not to the actual Judgement or right to enforce it."

Frangie, on the other hand, asserts that because his section 473 "motion involved priority of liens in connection with enforcement of judgment, the order did in fact relate to enforcement of judgment and is appealable.

We agree with Frangie that the April 14 order is appealable under section 904.1, subdivision (b) for several reasons. First, postjudgment orders denying relief under section 473 are appealable. (Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) Second, postjudgment orders that affect enforcement [*8] of the judgment, whether in favor of the judgment creditor or the judgment debtor, are appealable. (Baum v. Baum (1959) 51 Cal.2d 610, 614-615 [order granting or denying judgment creditor's motion for a charging order is appealable].) The April 14 order affects the enforcement of the judgment in that it finally determines the priority of the parties' respective liens. And third, the April 14 order relates to the enforcement of the judgment because "it determines the rights [of the parties in executing on] the judgment, is not preliminary to later proceedings, and will not become subject to appeal after some future judgment. Therefore, it is appealable." (Lakin, supra, 6 Cal.4th at p. 656, fn. omitted.)

II. MANDATORY RELIEF UNDER SECTION 473

Under section 473, subdivision (b), "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 [*9] 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. . . ." (Italics added.)

Frangie contends the trial court erred in failing to vacate his attorney's removal of the first motion for a charging order from the court's calendar, which Frangie equates with a dismissal under the mandatory relief provisions of section 473, subdivision (b). According to Frangie, the act of taking his first motion off calendar must be vacated because "taking the November 7th Motion off calendar is akin to a dismissal, and therefore," the court was required to grant relief. Frangie cites Yeap v. Leake (1997) 60 Cal.App.4th 591, 603, for the principle that "[a] dismissal is the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by a court."

Even assuming that the removal of the motion from the calendar was akin to a dismissal, not all dismissals are covered by the mandatory relief provisions of section 473, subdivision (b). "'Although [*10] the statute on its face affords relief from unspecified "dismissal" caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs' attorneys as a "perfect escape hatch" [citation] to undo dismissals of civil cases. Thus it has been held that the provision does not apply to dismissals under section 583.410 for delay in prosecution of the action because virtually all such dismissals are attorney caused and such a construction would result in a disfavored repeal of the discretionary dismissal statute by implication. [Citations.] Mandatory relief is not available after a summary judgment or judgment after trial, which involve actual litigation and adjudication on the merits. [Citations.] Nor may it be used to circumvent the statute of limitations, whose rigid enforcement is backed by venerable and long-lasting public policy considerations. [Citation.]' (Huens v. Tatum[(1997)] 52 Cal.App.4th[259,] 263-264.)" (Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at pp. 1396-1397.) The purpose of the mandatory relief provision "'was to alleviate [*11] the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. There is no evidence the amendment was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in a dismissal.' (Huens v. Tatum, supra, 52 Cal.App.4th at p. 264.)" (Id. at p. 1397.)

In this case, the mandatory relief provisions do not apply because Frangie "was not deprived of [his] day in court." (Generale Bank of Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1397.) By taking the first motion off calendar and then filing the second motion, Frangie's counsel gave up the priority of the first lien but did not deprive Frangie, whose second motion for a charging order was granted, of his day in court.

Even if taking the first motion off calendar may be viewed as a form of dismissal, it is not "the procedural equivalent of a default or a dismissal without an opportunity to be heard." (Generale Bank of Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1397.) We therefore conclude the act of taking the [*12] first motion off calendar does not fall within the mandatory relief provision of section 473, subdivision (b).

III. DISCRETIONARY RELIEF UNDER SECTION 473

Section 473, subdivision (b) provides in part: "The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."

Frangie contends the trial court abused its discretion in failing to relieve him of his counsel's mistake of taking the first motion off calendar.

"A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal. [Citation.] A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. [Citation.]" (Generale Bank of Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1399.) [*13]

The discretionary relief provisions of section 473, subdivision (b) do not excuse "'conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument . . . . To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice. [P] An exception to this rule allows relief where the attorney's neglect, although inexcusable, was so extreme as to constitute misconduct effectively ending the attorney-client relationship. "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.' [Citation.]" (Generale Bank of Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1400.)

In this case, the record shows that counsel's failure to continue the motion (and thereby preserve the priority of Frangie's lien) was not excusable neglect in the sense that "'"'a reasonably prudent person under the same or similar circumstances' might have made the same error. . . ." [Citation.] . . . .' [Citation.]" (Generale Bank of Nederland, N.V. v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1400.) [*14] Shojapour's declaration established that she would not have taken the first motion off calendar had she known the result would be to eliminate the priority of Frangie's lien. Given that the simple alternative of continuing the first motion would have preserved the priority of Frangie's lien, Shojapour's mistake of taking the motion off calendar was not excusable neglect. "Counsel's failure to discharge routine professional duties is not excusable, nor is counsel's failure to properly prepare for the hearing the conduct of a reasonably prudent person. Even if counsel's failings are characterized as mistakes of law, no relief under section 473 is warranted as 'ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.' [Citation.]" (Id. at p. 1402.)

Frangie's reliance upon Romadka v. Hoge (1991) 232 Cal. App. 3d 1231, 283 Cal. Rptr. 878, is misplaced. In Romadka, the attorney erroneously entered a voluntary dismissal of the client's case with prejudice, instead of without prejudice. While attorneys are "'authorized by virtue of [their] employment to bind [their] clients in procedural [*15] matters arising during the course of the action[, they] may not impair their client[s'] substantial rights or the cause of action itself.' (Linsk v. Linsk (1969) 70 Cal.2d 272, 276, 74 Cal. Rptr. 544.)" (Id. at p. 1235.) The attorney's unauthorized dismissal of the case with prejudice was held to be invalid in Romadka because it disposed of the client's substantive rights. "'Dismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time. . . .' (Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal. App. 3d 504, 509, 136 Cal. Rptr. 86.)" (Id. at p. 1236.)

While an attorney's unauthorized dismissal of a case with prejudice is an act beyond the scope of the attorney's authority, taking a motion off calendar and filing a second motion for a later hearing date is a routine procedural matter that does not require the client's express authorization or consent. (See Linsk v. Linsk (1969) 70 Cal.2d 272, 276, 74 Cal. Rptr. 544.)

We conclude Frangie has failed to establish that the trial [*16] court abused its discretion in denying his motion for relief.

IV. SANCTIONS ON APPEAL

By separate motion, Iris requests sanctions against Frangie for filing a frivolous appeal. Iris contends that "Frangie's counsel attempted to hoodwink both Iris' counsel and this Court" by omitting certain facts regarding the service, filing, and removal of Frangie's first motion for a charging order. Iris claims the appeal was frivolous because any reasonable attorney would objectively agree that it is completely and totally devoid of merit, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650, 183 Cal. Rptr. 508.

Having examined the record, we fail to find that Frangie's omissions of certain facts constituted the type of mischaracterization that would warrant a finding that the appeal was frivolous. While the appeal lacks merit, it is not so completely and totally devoid of merit that it is frivolous. (See In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 649-650.)

DISPOSITION

We affirm the postjudgment order denying relief under section 473, subdivision (b). Respondents are awarded their costs.

SUZUKAWA, J.*

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* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

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We concur:

MALLANO, Acting P.J.

VOGEL, J.

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