Huffman v. State of California CA4/1

Filed 4/14/16 Huffman v. State of California CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DANIEL G. HUFFMAN, D067816

Plaintiff and Appellant,

v. (Super. Ct. No.
37-2012-00091220-CU-CR-CTL)
STATE OF CALIFORNIA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.

The Okorocha Firm and Okorie C. Okorocha for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney

General, Thomas S. Patterson and John P. Walters, Deputy Attorneys General, for

Defendant and Respondent.

In this appeal from a judgment involving plaintiff and appellant Daniel G.

Huffman's claims against defendant and respondent the State of California (the State),

Huffman challenges the trial court's orders sustaining without leave to amend the State's
demurrer to his second amended complaint and dismissing the State from the action, then

denying Huffman's motion under Code of Civil Procedure1 section 473, subdivision (b)

for relief from the dismissal. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Huffman sued the State and several "John Doe" correctional officers for

negligence, assault, battery by a peace officer, intentional infliction of emotional distress,

and violation of Civil Code section 52, subdivision (a) (the Unruh Civil Rights Act). The

State demurred on several grounds; the trial court sustained the demurrer without leave to

amend and ordered the action dismissed. (Huffman v. State of California (Nov. 12, 2013,

D063025) [nonpub. opn.] (Huffman I).)2 On Huffman's first appeal, this court reversed

the judgment of dismissal as to the State and the Doe defendants and remanded the case

with directions that the court enter a new order sustaining the State's demurrer without

leave to amend as to Huffman's existing causes of action against the State only, but

granting Huffman leave to amend to allege a new cause of action against the State under

Government Code section 845.6. (Ibid.) We also directed the action to proceed against

the Doe defendants. (Ibid.)

1 Statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 We take judicial notice of our prior nonpublished opinion and the appellate record
in the matter. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court
records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180
Cal.App.4th 1160, 1171-1173 [court may take judicial notice of prior nonpublished
opinions in related appeals on its own motion].)
2
 This court's remittitur issued on January 15, 2014. On January 21, 2014, the trial

court issued a signed minute order vacating its dismissal as to the Doe defendants and

ordering the action to proceed against them. The court dismissed the matter as to the

State.3

On April 2, 2014, Huffman filed a second amended complaint against the State

and Does 1 through 7. Huffman asserted the same causes of action—negligence, assault,

battery by a peace officer, intentional infliction of emotional distress, and violation of the

Unruh Civil Rights Act—against the Doe defendants, and added a cause of action against

all defendants for violation of Government Code section 845.6.

The State demurred on grounds Huffman's second amended complaint was

untimely under section 472b, which required that Huffman file his amended pleading

within 30 days after the clerk's mailing of the notice of issuance of the remittitur.4 It also

moved to strike particular paragraphs from Huffman's pleading alleging vicarious

liability against the State on his preexisting causes of action.

3 The January 21, 2014 minute order departed from our directions on remittitur to
grant Huffman leave to amend to state a new cause of action against the State. However,
the court and parties later proceeded as if the State were not dismissed. We presume
given the State's reappearance in the case, that the court vacated this order as to the State
or treated it as a nullity.

4 Section 472b provides in part: "When 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." Huffman does not dispute
he filed his second amended complaint 77 days after the mailing of the notice of the
remittitur's issuance.
3
 In opposition, Huffman conceded the State's motion to strike. However, Huffman

asserted his counsel had never received a copy of the court's January 21, 2014 minute

order which erroneously dismissed the State, and she had attempted to contact the trial

court clerk and this court's clerk as to the deadline to file an amended pleading, thus

making a mistake entitling Huffman to mandatory relief under section 473, subdivision

(b) "in the event that [the trial court] should enter a judgment or dismissal." Huffman's

counsel prepared a declaration attesting to these facts, including her multiple attempts in

March 2014 to ask the court clerks when the amended pleading was due, only to be told

they were unaware of the status. Counsel stated that as of the filing of Huffman's

opposition papers, the court had not yet issued an "accurate" minute order. She did not

deny receiving this court's remittitur.

The trial court continued the State's demurrer hearing, finding Huffman's

arguments regarding section 473 relief "premature" and directing him to submit

supplemental briefing on the applicability of section 472b. Huffman thereafter conceded

in his supplemental briefing that his second amended complaint was technically untimely

under 472b, but he argued he was entitled to section 473 relief from the "anticipated

dismissal." He reiterated his counsel's efforts to ascertain the deadline to file the second

amended complaint and the issues with the January 21, 2014 minute order, arguing "a

complete and accurate Minute Order was never issued by this Court, one which would

state the time for Plaintiff to file the Second Amended Complaint, and was supposed to

include language as dictated by the Court of Appeal that Plaintiff had the right to file a

cause of action against Defendant State pursuant to Government Code section 845.6."

4
 On November 14, 2014, the trial court sustained the State's demurrer without leave

to amend, ruling section 472b applied. It denied Huffman's request for relief under

section 473 as "not properly before the court." The court ordered the State dismissed

from the action.

Huffman thereafter moved for mandatory relief under section 473, subdivision (b)

to set aside the State's dismissal. He argued his failure to timely file the second amended

complaint was the result of his counsel's admitted mistake. Huffman attached the

declaration his counsel had previously prepared for the supplemental briefing on section

472b. On March 11, 2015, the trial court ruled Huffman's counsel's failure to know the

section 472b deadline and failure to ascertain the deadline was insufficient grounds for

discretionary relief under section 473, subdivision (b). It stated that although Huffman's

counsel contacted the trial court clerk and this court's clerk to learn the applicable

deadline, his counsel was "required to research and discover the law in this regard and

not rely on" the clerks. The court further pointed out Huffman's counsel had contacted

the clerks after section 472b's 30-day time period had expired. The court cited Pagarigan

v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 44, and

concluded, "If [Huffman] had a question in this regard he should have filed something."

Also relying on Pagarigan, as well as Gotschall v. Daley (2002) 96 Cal.App.4th 479,

483-484, the court denied mandatory relief on grounds the State's dismissal was "not a

dismissal akin to a default"; rather, the dismissal resulted from Huffman's counsel's

failure to timely file an amended complaint under section 472b.

5
 Huffman filed this appeal. Huffman's April 1, 2015 notice of appeal states that he

is appealing from a judgment of dismissal under sections 581d, 583.250, 583.360, or

583.430, but it does not specify the date of any such judgment. However, both Huffman's

Civil Case Information Statement and his amended form notice designating the record on

appeal specify the trial court's March 11, 2015 order denying his motion for mandatory

relief under section 473, subdivision (b) as the appealed-from order.5

DISCUSSION

I. The Trial Court Did Not Abuse its Discretion in Sustaining the State's Demurrer

Huffman's notice of appeal does not specify the November 14, 2014 minute order

sustaining the State's demurrer without leave to amend, but his notice designating the

record of appeal, as well as some of his arguments on appeal, suggest he seeks to

challenge that order. He contends the trial court abused its discretion by sustaining the

State's demurrer without leave to amend because section 472b is inapplicable to his case.

5 An order denying relief under section 473, subdivision (b) is appealable as a
special order made after final judgment. (§ 904.1, subd. (a)(2); Doppes v. Bentley
Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008.) To constitute a judgment, an order of
dismissal must be "in the form of a written order signed by the court and filed in the
action." (§ 581d, italics added.) The record contained an unsigned minute order dated
November 14, 2014 sustaining the State's demurrer without leave to amend and
dismissing the State from the action. An unsigned minute order is an insufficient basis
for appeal under section 581d. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th
759, 768 [" '[a]n order that is not signed by the trial court does not qualify as a judgment
of dismissal under section 581d' "]; Powell v. County of Orange (2011) 197 Cal.App.4th
1573, 1578.) We directed Huffman to obtain an appropriate judgment of dismissal or
order dismissing the State. Having obtained a signed minute order dated November 14,
2014, we construe that order as the final judgment that renders the March 11, 2015 order
denying section 473, subdivision (b) relief appealable. (Cal. Rules of Court, rule
8.100(a)(2); see Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 2.)
6
The State argues the trial court correctly applied section 472b in sustaining the State's

demurrer.

A notice of appeal must "identif[y] the particular judgment or order being

appealed." (Cal. Rules of Ct., rule 8.100(a)(2).) "Our jurisdiction on appeal is limited in

scope to the notice of appeal and the judgment or order appealed from." (Polster, Inc. v.

Swing (1985) 164 Cal.App.3d 427, 436; see also Norman I. Krug Real Estate

Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-47 [rule of liberal

construction of notice of appeal does not permit court to address issues pertaining to

order or judgment not specified in the notice of appeal].) Having designated only the

court's March 11, 2015 order as the appealed-from order, we are without jurisdiction to

consider arguments relating to the November 14, 2014 order sustaining the State's

demurrer without leave to amend and dismissing it from the case.

Even if we were to construe the notice of appeal as specifying the November 14,

2014 order, rendering Huffman's section 472b argument cognizable on appeal, we would

conclude it is without merit. The 30-day time limit to file any amended complaint applies

when "an order sustaining a demurrer without leave to amend is reversed or otherwise

remanded by any order issued by a reviewing court." (§ 472b, italics added.) As an

initial matter, Huffman conceded in the trial court below that section 472b applied and

that he untimely filed the amended complaint. Setting that aside, his sole cursory

argument on appeal consists of a quote from Dye v. Caterpillar, Inc. (2011) 195

Cal.App.4th 1366, where the court stated that the "Legislature intended the 30-day time

limit [of section 472b] to apply only when a reviewing court directs a trial court to sustain

7
a demurrer with leave to amend." (Id. at p. 1379.) That is what occurred here. Our

decision in Huffman I remanded the case with directions that the court enter a new order

sustaining the State's demurrer without leave to amend as to Huffman's existing causes of

action against the State while "granting Huffman leave to amend to allege a cause of

action [against the State] under Government Code section 845.6." (Huffman I, supra,

D063025, italics added; accord, Pagarigan, supra, 158 Cal.App.4th at pp. 42-43 [section

472b applied when prior appellate decision remanded the case with instructions to

" 'sustain the demurrer with leave to amend as to the first and eleventh causes of action in

the [plaintiffs'] complaint and to sustain the demurrer without leave to amend as to the

remaining counts' "]; see also Dye, at p. 1379 [distinguishing Pagarigan and stating

"Pagarigan is not inconsistent with the Dyes' contention that section 472b's 30-day time

limit only applies when a reviewing court directs the trial court to sustain a demurrer with

leave to amend"].) Dye v. Caterpillar does not assist Huffman because there, the 30-day

period was inapplicable where an appellate court found facts were adequately pleaded,

and issued an outright reversal of an order sustaining a demurrer. (Dye, 195 Cal.App.4th

at pp. 1371-1372, 1383 ["Because this court's prior opinion did not direct the trial court to

sustain defendants' demurrers to the third and fourth amended complaints with leave to

amend, we conclude that the 30-day time limit did not apply"].) Dye is inapposite.

Because the trial court properly applied section 472b, it did not abuse its discretion

in sustaining the State's demurrer without leave to amend.

8
 II. Huffman Is Ineligible for Relief Under Section 473, Subdivision (b)

Huffman contends the trial court abused its discretion when it denied his motion to

set aside the State's dismissal under section 473, subdivision (b). The State asserts

Huffman's failure to timely file his second amended complaint under section 472b

disqualifies him from mandatory relief under section 473, subdivision (b), because that

provision only applies to dismissals "procedurally equivalent to a default." The State

further argues Huffman cannot receive discretionary relief under section 473, subdivision

(b), because his counsel's failure to comply with section 472b's statutory deadline was an

unreasonable mistake of law.

A. Standard of Review

Because the facts underlying the State's dismissal are not in dispute, we review the

applicability of the mandatory relief provision of section 473, subdivision (b) de novo as

a pure question of law. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399;

Leader v. Health Industries of America (2001) 89 Cal.App.4th 603, 612, 620; see also

Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226 (Henderson)

[reviewing the issue of whether the mandatory provision applies to summary judgments

de novo as a question of statutory construction].) If the prerequisites for the mandatory

provision of section 473, subdivision (b) exist, the trial court does not have discretion to

refuse relief. (Leader, at p. 612.)

"A ruling on a motion for discretionary relief under section 473 shall not be

disturbed on appeal absent a clear showing of abuse." (State Farm Fire & Casualty Co.

v. Pietak (2001) 90 Cal.App.4th 600, 610.) "The appropriate test for abuse of discretion

9
is whether the trial court exceeded the bounds of reason. When two or more inferences

can reasonably be deduced from the facts, the reviewing court has no authority to

substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d

474, 478-479.)

We recognize that the trial court's discretion in such motions is limited by the

public policy that favors trials on the merits and that "very slight evidence is required to

justify a trial court's order setting aside a default." (Shamblin v. Brattain, supra, 44

Cal.3d at p. 478.) Thus, " 'a trial court order denying relief is scrutinized more carefully

than an order permitting trial on the merits.' " (Rappleyea v. Campbell (1994) 8 Cal.4th

975, 980.)

B. Mandatory Relief Under Section 473, Subdivision (b) Does Not Apply Because

Dismissal of the State Was Not "Procedurally Equivalent to a Default"

The mandatory relief provision under section 473, subdivision (b) provides:

"[T]he 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."

"The mandatory relief provision of section 473[, subdivision] (b) is a 'narrow

exception to the discretionary relief provision for default judgments and dismissals.'

10
[Citation.] Its purpose ' "was to alleviate the hardship on parties who lose their day in

court due solely to an inexcusable failure to act on the part of their attorneys." ' "

(Henderson, supra, 187 Cal.App.4th at p. 226; see also Zamora v. Clayborn Contracting

Group, Inc. (2002) 28 Cal.4th 249, 257.) It "was never intended to be a 'catch-all remedy

for every case of poor judgment on the part of counsel which results in dismissal.' "

(Gotschall v. Daley, supra, 96 Cal.App.4th at p. 483, quoting Huens v. Tatum (1997) 52

Cal.App.4th 259, 263, limited to mandatory relief provisions of section 473 as noted in

Zamora, at pp. 256-257.)

In keeping with these principles, appellate courts have limited the mandatory relief

provision of section 473, subdivision (b) to apply only to dismissals that are the

"procedural equivalent of a default"—i.e., those that occur because the plaintiff's attorney

has failed to oppose a dismissal motion. (Leader v. Health Industries of America, Inc.,

supra, 89 Cal.App.4th at p. 620 ["[W]hen the Legislature incorporated dismissals into

section 473, subdivision (b) it intended to reach only those dismissals which occur

through failure to oppose a dismissal motion"]; see also Pagarigan v. Aetna U.S.

Healthcare of California, Inc., supra, 158 Cal.App.4th at p. 45; Matera v. McLeod (2006)

145 Cal.App.4th 44, 64-65; Jerry's Shell v. Equilon Enterprises, LLC (2005) 134

Cal.App.4th 1058, 1070-1072 [discussing cases; relief may be afforded where counsel's

failure to appeal in opposition to a dismissal motion is the fault of counsel, and in that

case the relief afforded to a dismissed plaintiff is comparable to the relief afforded to a

defaulting defendant]; Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809,

1820-1821.) Courts have rejected a literal construction of the term "dismissal" in the

11
mandatory relief provision of section 473 as inconsistent with the apparent purpose of the

statute. (Matera v. McLeod, at p. 65.) Such a narrow interpretation " 'is consistent with

the statute's policy to put plaintiffs whose cases are dismissed for counsel's failure to

respond to the dismissal motion on the same footing as defendants who have defaulted

because of counsel's failure to respond.' " (Gotschall v. Daley, supra, 96 Cal.App.4th at

p. 483.)

Applying this reasoning, courts have declined to apply the mandatory provision to

dismissals for lapsing of the statute of limitations (Castro v. Sacramento County Fire

Protection Dist. (1996) 47 Cal.App.4th 927, 233) and failure to file an amended

complaint after a demurrer has been sustained with leave to amend. (Gotschall v. Daley,

supra, 96 Cal.App.4th at pp. 483-484, citing Leader v. Health Industries of America, Inc.,

supra, 89 Cal.App.4th at p. 620.) In Leader, the court held that a plaintiff may not obtain

mandatory relief from a dismissal based on the failure to file an amended complaint after

a demurrer has been sustained with leave to amend, "at least where, as here, the dismissal

was entered after a hearing on noticed motions which required the court to evaluate the

reasons for delay in determining how to exercise its discretion." (Leader, at p. 620.) The

defendant in Leader did not timely file an amended complaint following a sustaining of a

demurrer, and later sought to excuse the failure by his counsel's declaration that he had

"misplaced" client materials necessary to remedy the pleading deficiencies. The court

affirmed the judgment of dismissal, comparing the circumstances in that case to

discretionary dismissals for delay in prosecution: " ' "[V]irtually all such dismissals are

attorney caused and such a construction [interpreting the mandatory provision of section

12
473 to encompass such dismissals] would result in a disfavored repeal of the

discretionary dismissal statute[s] by implication." ' [Citation.] 'This conclusion is

consistent with the narrow view of the Legislature's intent which appellate courts have

taken, i.e., that the section's purpose was simply "to put plaintiffs whose cases are

dismissed for failing to respond to a dismissal motion on the same footing with

defendants who are defaulted for failing to respond to an action." ' " (Leader, 89

Cal.App.4th at p. 620.)

Here, the trial court dismissed the State on November 14, 2014, and Huffman filed

his motion to set aside the dismissal accompanied by his counsel's declaration in

February 2015, well within the six-month statutory deadline. However, the trial court

found the State's dismissal was the result of counsel's failure to comply with section

472b, a dismissal that was not "akin to a default." Huffman's opposition to the State's

demurrer and motion to strike indicated his counsel's intention to file a section 473,

subdivision (b) motion in the event the trial court sustained the demurrer and dismissed

the State. His counsel reiterated the argument for mandatory relief in the supplemental

briefing on section 472. Huffman's counsel also appeared telephonically at the

November 11, 2014 hearing and argued against the State's demurrer and motion to strike.

Having had his "day in court"—an opportunity to present evidence and argument in

opposition to the State's demurrer and motion to strike—the State's dismissal was not a

dismissal "procedurally equivalent to a default" that would entitle Huffman to mandatory

relief. (Accord, Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at

pp. 617, 621; Brown v. Williams (2000) 78 Cal.App.4th 182, 189 [when plaintiff

13
appeared and participated in hearing, plaintiff's counsel's failure to request trial de novo is

not grounds for invoking mandatory relief provision; judgment entered against plaintiff

was not the procedural equivalent of a default].)

C. The Trial Court Did Not Abuse Its Discretion in Denying Huffman Discretionary

Relief Under Section 473, Subdivision (b) Because His Counsel Made an Unreasonable

Mistake of Law

The discretionary relief provision provides: "The court may, upon any terms as

may be just, 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." (§ 473, subd. (b).) "As the California

Supreme Court [has] observed: 'The discretionary relief provision of section 473,

subdivision (b) applies to any "judgment, dismissal, order, or other proceeding." '

[Citation.] Thus, for example, 'the failure of counsel to meet a procedural deadline' is 'a

proper subject for section 473 relief.' " (Huh v. Wang (2007) 158 Cal.App.4th 1406,

1419.)

An honest mistake of law is a valid ground for discretionary relief when the legal

problem posed is " 'complex and debatable.' " (Toho-Towa Co. v. Morgan Creek

Productions, Inc. (2013) 217 Cal.App.4th 1096, 1111.) However, a mistake is not a

ground for discretionary relief when it is simply the result of general ignorance of the

law. (Henderson, supra, 187 Cal.App.4th at p. 229; Hearn v. Howard (2009) 177

Cal.App.4th 1193, 1206, quoting 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on

Judgment in Trial Court, § 155, p. 749 ["Where the court finds that the 'mistake' is simply

14
the result of professional incompetence, general ignorance of the law, or unjustifiable

negligence in discovering the law, relief will be denied"].) "While a mistake in law is a

ground for relief under section 473, the 'issue of which mistake in law constitutes

excusable neglect presents a question of fact. The determining factors are the

reasonableness of the misconception and the justifiability of lack of determination of the

correct law. [Citation.]' [Citation.] '[I]gnorance of the law coupled with negligence in

ascertaining it will certainly sustain a finding denying relief.' " (Robbins v. Los Angeles

Unified School District (1992) 3 Cal.App.4th 313, 319, superseded by statute on another

ground as stated in Scott Co. of California v. United States Fidelity & Guaranty

Insurance Company (2003) 107 Cal.App.4th 197, 208, disapproved on other grounds in

LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1107 & fn. 5.)

Here, the legal issue as to which Huffman was mistaken was neither complex or

debatable. The language of section 472b sets a clear and mandatory 30-day deadline for

filing an amended complaint after the clerk of the reviewing court mails notice of

issuance of the remittitur. (See Pagarigan v. Aetna U.S. Healthcare of California, Inc.,

supra, 158 Cal.App.4th at p. 44 [section 472b is " 'absolutely completely clear' "].) This

court's remittitur issued on January 15, 2014, and Huffman makes no claim that his

counsel was unaware of its issuance. Huffman's counsel, however, did not take action to

ascertain the deadline to file the second amended complaint until she called the court

clerks on March 13, 2014. The trial court denied discretionary relief on grounds

counsel's failure to know the section 472b deadline and failure to ascertain it was

unreasonable. It ruled, "Plaintiff's counsel is required to research and discover the law in

15
this regard and not rely on the Court Clerk or the Court of Appeal Clerk to advise counsel

of the appropriate deadline." We conclude the trial court did not abuse its discretion

when it concluded Huffman's mistake of law was unreasonable and denied section 473,

subdivision (b) discretionary relief. (Accord, Pagarigan at p. 44 [counsel's failure to

ascertain the section 472b deadline was an unreasonable mistake of law, and had there

been doubt about it, the appellants should have sought leave to file something or acted on

it].)

III. The Trial Court Did Not Abuse Its Discretion in Declining to Exercise Its Equitable

Power to Set Aside the State's Dismissal

Huffman finally contends the trial court abused its discretion in not exercising its

inherent equitable power to set aside the dismissal for "extrinsic mistake."6 The State

responds that the conduct of Huffman's counsel does not permit a finding of an extrinsic

mistake so as to justify equitable relief.

The court's inherent authority to vacate a default and default judgment on

equitable grounds such as extrinsic fraud or extrinsic mistake exists apart from any

statute. (Bae v. T.D. Service Company (2016) 245 Cal.App.4th 89, 97, in part citing

6 Huffman's motion below to set aside the dismissal only related to section 473,
subdivision (b), and nothing in the record indicates that Huffman moved for equitable
relief from the dismissal. "It is well established that issues or theories not properly raised
or presented in the trial court may not be asserted on appeal, and will not be considered
by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore
waived the right to do so on appeal." (In re Marriage of Eben-King & King (2000) 80
Cal.App.4th 92, 117.) However, "[a]fter six months from entry of default, a trial court
may still vacate a default on equitable grounds even if statutory relief is unavailable."
(Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) We address Huffman's contentions
to obviate the need for Huffman to move for equitable relief following this appeal.
16
Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.) We review such a challenge for an

abuse of discretion. (Reppleyea, at p. 981.) " ' "To set aside a judgment based upon

extrinsic mistake one must satisfy three elements. First, the defaulted party must

demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the

default must articulate a satisfactory excuse for not presenting a defense to the original

action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the

default once . . . discovered." ' " (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th

488, quoting Rappleyea, at p. 982; see also Bae v. T.D. Service Company, at p. 100.)

Rappleyea explained that the second element of this three-part test—a satisfactory

excuse—is "the same as asking whether an extrinsic mistake occurred." (Rappleyea v.

Campbell, supra, 8 Cal.4th at pp. 982-983.) The term "extrinsic mistake" has been

"broadly applied when circumstances extrinsic to the litigation have unfairly cost a party

a hearing on the merits." (Rappleyea, at p. 981.) "The term 'extrinsic' refers to matters

outside of the issues framed by the pleadings, or the issues adjudicated." (Aldrich v. San

Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738.) Extrinsic mistake has

been found when the attorney's positive misconduct deprives his or her client of a

hearing. (Id. at pp. 738-739). "Positive misconduct is found where there is a total failure

on the part of counsel to represent his client." (Id. at p. 739; Carroll v. Abbott

Laboratories, Inc. (1982) 32 Cal.3d 892, 898 [positive misconduct occurs where there is

a total failure on the part of counsel to represent the client amounting to a "de facto

severance of the attorney-client relationship"].) "Relief is denied, however, if a party has

been given notice of an action and has not been prevented from participating therein. He

17
has had an opportunity to present his case to the court and to protect himself from

mistake or from any fraud attempted by his adversary." (Kulchar v. Kulchar (1969) 1

Cal.3d 467, 472; see also Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044.)

" 'To the extent that the court's equity power to grant relief differs from its power

under section 473, the equity power must be considered narrower, not wider.' " (Carroll

v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 901, fn. 8, citing Weitz v. Yankosky

(1966) 63 Cal.2d 849, 857.) For example, a stronger showing of the excusable nature of

neglect is required to obtain relief under a court's equity power than would be necessary

for relief under section 473. (Carroll v. Abbott Laboratories, Inc. at p. 901, fn. 8.)

We conclude Huffman cannot demonstrate a satisfactory excuse for his counsel's

failure to timely file his second amended complaint. He repeats that his counsel had not

received the trial court's minute order following the remittitur, and she attempted on

numerous occasions to contact the court to find out when the pleading was due. He

argues that had his counsel received the minute order, he would have sought clarification

because the order was "incongruous" with the remittitur as to the State. As we have

explained, however, the deadline missed by counsel was triggered by the remittitur, not

by the minute order. Huffman was not thereafter prevented from participating in the

action, and his counsel's conduct did not rise to a "de facto severance of the attorney-

client relationship." (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at p. 898.)

Huffman's counsel was aware of the possibility of the State's dismissal due to the failure

to comply with section 472b and argued for relief from dismissal as early as the

opposition to the State's demurrer. His counsel not only continued to represent Huffman

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but also prepared a signed declaration attesting to her mistake and neglect. She appeared

telephonically at the hearing on the State's demurrer, thereby protecting Huffman's

interests. Huffman's counsel filed a section 473, subdivision (b) motion to set aside the

State's dismissal within the statutory deadline, and the trial court considered the parties'

written and oral arguments on the motion. On this record, the trial court did not abuse its

discretion in declining to exercise its inherent equity power to grant relief from the State's

dismissal.

DISPOSITION

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 The judgment is affirmed. The State of California shall recover costs on appeal.

(Cal. Rules of Court, rule 8.278(a)(2).)

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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