Metropolitan News-Enterprise


Wednesday, September 20, 2017


Page 3


Court of Appeal Finds:

Lawyer’s Mistake Was Excusable Because Rival Also Befuddled

Plaintiffs Whose Lawyer Thought a Stricken Pleading Was Operative Are Entitled to Discretionary Relief Because Counsel for One of the Defendants Shared That Impression—Justice Collins


By a MetNews Staff Writer


The Court of Appeal for this district has held that a Los Angeles Superior Court judge erred by not granting discretionary relief based on a purported misunderstanding of her order by the plaintiffs’ attorney—who failed to file a first amended complaint after a demurrer was sustained to the initial complaint—because a defense lawyer shared his lack of comprehension.

Div. Four, in its opinion by Justice Audrey Collins, did not find that the order by Judge Elizabeth R. Feffer was imprecise or that either side had a reasonable basis for misconstruing what she said at the hearing on March 9, 2016. Rather, the court held that Feffer should have granted discretionary relief, under Code of Civil Procedure §473(b), because it was unfair to penalize the plaintiffs for their lawyer failing to grasp what had occurred in her courtroom given that the  defense was also mistaken as to the outcome.

It also found that the lawyers were reasonable in relying on their understanding of the law as it existed prior to Jan. 1, notwithstanding Feffer’s advisement as to the current law.

2016 Hearing

Feffer had before her a demurrer to a May 2015 wage-and-hour complaint. It was brought against Crystal Property Management, which had answered; Paul Yeager, who was later substituted for a “Doe,” filed the demurrer.

The three plaintiffs were represented by K. Kevin Levian and Yeager by Larry D. Mikelson; there was no appearance at the hearing for Crystal.

At that Wednesday hearing, Levian represented to Feffer that an amended complaint had been filed earlier in the week. As it turned out, the pleading had been filed the previous day, March 8.

Under Code of Civil Procedure §472(a), as amended effective Jan. 1 of that year, an amended complaint could be served and filed, without leave of the court, either before an answer was filed—which did not apply—or “no later than the date for filing an opposition to the demurrer.”

The statute previously permitted the service and filing at any time prior to the hearing on the demurrer.

The amended complaint in the case at hand, to be timely, would have to have been served and filed by Feb. 25. Under Code of Civil Procedure §1005(b), “All papers opposing a motion…shall be filed with the court and a copy served on each party at least nine court days…before the hearing.”

Minute Order

The minute order reflects:

“The matter comes on for hearing. Plaintiff’s counsel reports that a first amended complaint was filed earlier in the week. There is no such pleading scanned or received in the Department, nor has defendant’s counsel received an amended complaint.

“The court finds that to the extent that an amended complaint was filed, Code of Civil Procedure Section 472(a) requires leave of court to file an amended complaint once an answer has been filed, and that a proper amended complaint must be filed prior to the time an opposition to the demurrer is due. A first amended complaint that may have been filed in the last two days would be non-compliant with law.

“The court strikes any first amended complaint filed by plaintiff prior to today under Code of Civil Procedure Section 436(b), which gives the court authority to strike pleadings not drawn in conformity with law.”

Feffer granted leave to amend, by March 18, paving the way for Levian to refile the spurned pleading. He didn’t do so.

Nonetheless, Mikelson on April 1 filed a demurrer to the March 8 pleading that had been stricken. Crystal, which was separately represented, did not join in the demurrer; on April 7, it filed an answer.

June 8 Ruling

In a tentative ruling, adopted as the ruling on June 8, Feffer said:

“The First Amended Complaint filed March 8, 2016 was stricken by the court. The court then sustained the demurrer to the original complaint in its entirety and granted Plaintiff[s] leave to amend, requiring that a first amended complaint be filed and served by March 18, 2016. [¶] Plaintiffs did not file a subsequent First Amended Complaint in compliance with the court’s March 9, 2016 order. Plaintiffs have not sought leave from the Court to file a now untimely first amended complaint either by motion or stipulation. As such, there is no operative complaint before the court, and the demurrer is ordered OFF-CALENDAR.”

Two days later, both Crystal and Yeager filed ex parte motions to dismiss, which Feffer granted.

Relief Sought, Denied

The plaintiffs sought relief, pursuant to §473(b), both under the discretionary provision—based on “inadvertence, surprise, or excusable neglect”—and the mandatory-relief provision, reliant on an attorney’s affidavit of fault, which Levian provided. Feffer denied the motions.

The plaintiffs appealed on Sept. 29, 2016. On Nov. 4, they requested a dismissal of the appeal as to Yeager.

The adequacy of Levian’s declaration was not reached by Collins. She declared in her opinion—filed Monday, and not certified for publication—that Feffer was obliged to grant discretionary relief.

She did not differ with Feffer’s conclusion that Levian should have known prior to the March 9, 2016 hearing that, under §472(a), as amended effective Jan. 1, the purported first amendment complaint was untimely. However, Collins found that after that hearing, Levian’s purported belief that the stricken March 8 complaint was nonetheless the operative pleading was reasonable in light of Mikelson’s concurrence in that impression.

Mistake of Fact

Collins proclaimed that the plaintiffs’ “mistake of fact regarding the continued validity of the March 8th complaint was, on the unusual facts of this case, excusable.”

She wrote:

“Multiple reasonable people misunderstood the status of the March 8th complaint. Yet the court penalized plaintiffs exclusively, and harshly, for the joint error that had no material effect on the forward progression of the case—plaintiffs wanted to stand on their March 8th complaint, and both defendants substantively responded to it. As a result of the court’s elevation of form over substance, plaintiffs lost the opportunity to litigate the merits of their claims, while defendants gained a windfall despite their counsels’ similar errors. The law strongly favors resolution of cases on their merits, and the court abused its discretion by depriving plaintiffs of that opportunity here.”

The case is Lizzarraga v. Crystal Property Management, B277952.


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