Metropolitan News-Enterprise


Monday, September 18, 2017


Page 1


Court of Appeal Declares:

Trial Court Had Power to Vacate Judgment After Dismissal of Appeal

Says That Where Remittitur Did Not Define Superior Court’s Jurisdiction Going Forward, the Judge Was Compelled To Scrap the Judgment Under the Mandatory Relief Statute Where Attorney Submitted an Affidavit of Fault


By a MetNews Staff Writer


The Fourth District Court of Appeal has held that a trial judge was too deferential to it, and should have granted a motion to vacate a judgment even though an appeal from that judgment had been dismissed by the appeals court.

Div. Two, in an unpublished opinion by Presiding Justice Manuel A. Ramirez, said Thursday that Riverside Superior Court Judge David M. Chapman erred because a post-appeal attorney’s affidavit of fault was presented to him, rendering relief compulsory under Code of Civil Procedure §473(b).

Ramirez recited that Bert G. Cotton brought an action in 2010 alleging a wrongful foreclosure; demurrers were sustained in 2011 to his third amended complaint, without leave to amend, and he appealed from the judgment of dismissal; Div. Two reversed, saying, in Cotton I, that the plaintiff should be given one more chance to amend and that “any amended complaint must be filed within 30 days after the issuance of the remittitur.”

On remand, he failed to file an amended pleading; the defendants moved for a dismissal, which was granted; he sought relief in the trial court which was denied, without prejudice, because he failed to attach his proposed fourth amended complaint; in Cotton II, he appealed from the Oct. 23, 2014 judgment of dismissal; he abandoned his appeal by failing to make requisite filings, and Div. One dismissed the appeal, issuing its remittitur on April 1, 2015.

On April 7, 2015, Cotton moved for an order vacating the 2014 judgment of dismissal based on an affidavit of fault filed by Los Angeles attorney Douglas E. Klein. He acted within the six-month period, from the time of judgment, when relief from a default or dismissal must be provided, under §473(b), where an attorney confesses that the adverse action was the product of his or her “mistake, inadvertence, surprise, or neglect.”

Lawyer ‘Overlooked’ Case

Klein explained that he learned on Oct. 2, 2014, that an ex parte hearing was slated for the following morning on a motion to dismiss; he advised opposing counsel he could not appear, himself, because it was Yom Kippur but “would have another lawyer appear and would have the papers in opposition filed at the hearing”; he was engaged in an unlawful detainer proceeding and “completely overlooked the necessity to hire another lawyer and prepare any opposition to the motion at that particular time”; and due to a “heavy caseload,” inadvertently overlooked paying attention to this case until this day.”

Chapman denied the motion on the ground that the Superior Court lacked jurisdiction in light of action by the Court of Appeal in dismissing the appeal in Cotton II. He wrote:

“Plaintiff seeks relief under the mandatory provisions of Code of Civil Procedure (CCP) section 473. Relief is mandatory only from those dismissals which are the ‘procedural equivalent of a default’; i.e., those which deprive plaintiffs of their day in court….For example, this may include dismissals based on plaintiff’s failure to amend or file pleadings within the time ordered by the court; or failure to oppose a dismissal motion….At first look this motion appears to be well taken because it is based upon an attorney affidavit of fault that explains the reasons for Plaintiff’s attorney’s failure to oppose the ex parte dismissal motion. However, Plaintiff ignores the fact that that after the motion to dismiss was granted, Plaintiff filed an ex parte to vacate the dismissal, which the court denied on procedural grounds, and then, more importantly, an appeal, which Plaintiff abandoned. The appeal was of ‘the final judgment.’…The order dismissing the appeal is now final. This court may not now revisit the judgment.”

Cotton III Decision

Now, in Cotton III, Div. Two has directed the trial court to vacate the 2014 judgment of dismissal and has ordered, as it did in Cotton I, that Cotton receive costs on appeal.

Chapman took the position, embraced by the respondents in the appeal—trustee California Reconveyance Company (CRC) JPMorgan Chase Bank, N.A.—that when an appellate court’s jurisdiction ends and the trial court regains jurisdiction following the issuance of remittitur, the trial court may take no action not delineated in the remittitur.

Ramirez responded:

“The order of dismissal and the remittitur in Cotton II, however, contained no directions to the trial court. The order of dismissal, as relevant here, merely said, ‘The appeal is dismissed....’ (Capitalization altered.)…The fact that our dismissal of the appeal was final had no bearing on whether the trial court could vacate the judgment.

“The judgment itself was final even before the appeal in Cotton II, but that is irrelevant. A final judgment can be vacated under Code of Civil Procedure section 473….

“We therefore conclude that the trial court’s stated reason for denying the motion to vacate was erroneous.”

The defendants raised the contention, for the first time on appeal, that Chapman was precluded from granting relief because it would have defied the dictate by the Court of Appeal in Cotton I that any amended pleading be filed within 30 days of the issuance of the remittitur. Ramirez declared:

“Here, our direction that ‘any amended complaint must be filed within 30 days after the issuance of the remittitur’…merely tracked Code of Civil Procedure section 472b. That section provides that ‘[w]hen an order sustaining a demurrer without leave to amend is reversed or otherwise remanded by any order issued by a reviewing court, any amended complaint shall be filed within 30 days after the clerk of the reviewing court mails notice of the issuance of the remittitur.’

“Code of Civil Procedure section 472b does not deprive the trial court of its inherent power to grant an extension of time….Nor does it deprive the trial court of its power to grant relief under Code of Civil Procedure section 473….

“Most important, our opinion did not indicate that we had any reason to prevent the trial court from exercising its ordinary powers. We simply held that Cotton was entitled to an opportunity to amend his complaint. If he failed to do so in a timely manner, we suggested no reason to treat him any better or any worse than any other litigant in the same position.

He remarked, in a footnote:

“In our minds, we were simply trying to alert the parties to the need to file an amended complaint promptly on remand and to spare them from researching Code of Civil Procedure section 472b. We cannot help but be reminded of the adage that ‘No good deed goes unpunished.’ ”

The case is Cotton v. Mortgage Electronic Registration Systems, Inc., E063922.


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