Metropolitan News-Enterprise


Thursday, April 11, 2019


Page 1


Court of Appeal:

Judge Should Have Used Inherent Powers To Relieve Lawyer, Wife From Default

Johnson Says Discretion Abused in Denying Equitable Relief Where Fault Was on the Part of the Defendants’ Lawyer, Although The Parties Had Not Kept in Touch With Him as to Case’s Status


By a MetNews Staff Writer


The Court of Appeal for this district has reversed a judge’s denial of a motion for relief from default although the plaintiffs—an attorney and his wife—did not make a timely motion for discretionary relief under Code of Civil Procedure §473 and could not seek mandatory relief under that section because they were unable to obtain an affidavit of fault from their lawyer, whose whereabouts were unknown.

“A motion for relief addressed to the court’s equitable powers may be made after the time for relief under section 473 has expired,” Justice Jeffrey Johnson pointed out in an opinion filed Tuesday and not certified for publication.

Such inherent powers ought to have been exercised, he said, in a case in which a default judgment was entered in favor of Bethany Construction, Consulting and Management, Inc. for fees based on work done on the Pacific Palisades home of the defendants, mid-Wilshire personal injury attorney Michael H. Kapland and his wife, certified financial planner Kathryn M. Carter. Their lawyer, not they, were at fault for the events triggering the default judgment, Johnson declared, rejecting the contention that they were in part to blame for not having been in contact with the lawyer for 10½ months before learning that matters had gone awry.

Pleadings Stricken

Los Angeles Superior Court Judge Nancy L. Newman on Feb. 9, 2017, had struck the answer filed by Kapland and Carter, as well as their cross-complaint, which alleges shoddy work by Bethany and their need to pay another company to remedy what the plaintiff had botched. Newman acted after the defendants’ attorney, Nicholas B. Spirtos of Santa Monica, failed to provide discovery responses, to produce his clients at depositions, or to pay sanctions that had been imposed.

Newman on June 6, 2017, awarded the plaintiff judgment in the amount of $167,296.47.

It was not until Aug. 23 that Kapland and Carter, returning from a trip, opened their mail and found an abstract of judgment sent by Bethany. Checking on the status of the case, they discovered what had transpired.

On Oct. 5, through new counsel, they sought relief from default under §473, as well as the court’s inherent equitable powers. Newman on Oct. 30 denied relief.

§473 Motion Untimely

The motion under §473 was barred, she determined, because it was not filed within six months of the default being entered, as required by the statute. With that, Johnson agreed.

She also declined to exercise equitable powers based on extrinsic fraud or mistake, pointing out that a requisite for relief is that the litigants “acted with minimal diligence.” She ascribed fault to Kapland and Carter—who had not spoken with Spirtos for 10½ months—for not having kept abreast of what was going on in their case.

Newman said that “the court is not inclined to find that almost a year passing without any communication was reasonable,” remarking that a “simple inquiry” as to what was going on “would have likely revealed the problem.”

There, Johnson disagreed.

‘Positive Misconduct’

Parties are not charged with their lawyer’s neglect where there has been “positive misconduct” by the lawyer, he said, reciting:

“Spirtos repeatedly failed to respond to discovery requests or to notify Kapland and Carter of the requests. After lulling them into a state of security by assuring them that he would provide affirmative updates in order to keep them from incurring unnecessary legal fees, he promptly abandoned them, failing to respond to the final discovery request, sanctions order, or motion for terminating sanctions.”

That amounted, Johnson said, to “positive misconduct.”

Not Excessive

A 10½-month period within which Kapland and Carter did not communicate with their lawyer was not an excessive amount of time, Johnson said, noting:

“There were no looming deadlines which should have alerted Kapland and Carter to Spirtos’s misconduct.”

He cited the 1985 Court of Appeal case of Aldrich v. San Fernando Valley Lumber Co., decided by this district’s Div. Three. The opinion says that the issue there was “whether plaintiff presented a satisfactory excuse for not following his case more closely and thereby not learning that his attorney had abandoned him and had been suspended.”

In resolving that issue, the opinion quotes—as Johnson did—from a 1964 Third District opinion in Daley v. County of Butte which provides this analysis:

“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.”

‘Hawklike Inquisitors’

Affirming an order vacating a dismissal, the court in Aldrich said:

“It is undeniable in the case at bench that plaintiff did not assiduously seek out his attorney. But, as has been pointed out, a client should not be required to act as a ‘hawklike inquisitor’ of his own counsel, nor perform incessant checking on counsel.”

Likewise, Johnson said in Tuesday’s opinion:

“During what was, in actuality, a relatively brief period of time in the course of civil litigation…, Kapland and Carter should not have been ‘forced to act as hawklike inquisitors of their own counsel,’ incessantly checking up on him…and incurring legal fees for the sole purpose of monitoring his actions.”

Johnson did not discuss whether there was significance in the fact that Kapland, unlike the “lay litigant” described in the 1964 opinion—to whom court proceedings “are dark, complex and unfathomable”—is a practicing attorney.

Meritoriousness Shown

He said that the defendants satisfied a requirement for equitable relief by providing “evidence of a meritorious case.”

Johnson wrote:

“In light of Spirtos’s positive misconduct and abandonment of his clients, the promptness with which Kapland and Carter acted upon discovery of the default judgment, and the lack of showing of prejudice, we conclude the trial court abused its discretion in denying Kapland and Carter equitable relief from the judgment.”

The case is Bethany Construction Consulting and Management v. Kapland, B286749.

Edward M. Anderson and Regina Yeh of the Santa Monica firm of Anderson Yeh represented Bethany and Michael S. Martin and Eric R. Reed of the Ventura firm of Myers, Widders, Gibson, Jones & Feingold acted for Kapland and Carter.

The State Bar Office of Chief Trial Counsel on Nov. 13, 2008, brought disciplinary charges against Spirtos based on his handling of the case for Kapland and Carter. On March 15, the State Bar Court entered Spirtos’s default after he failed to show up for trial and ordered him enrolled as an inactive member.

His license as a general building contractor expired last year and he is on inactive status.


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