Filed 10/3/23 The Little Red Dog v. Mayeda CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE LITTLE RED DOG, INC., B324244
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCP00975)
v.
MARCIA MAYEDA, as Director, etc.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County. Mary H. Strobel, Judge. Affirmed.
Huston McCaffrey and Shawn P.K. Huston for Plaintiff and
Appellant.
Carpenter, Rothans & Dumont, Jill Williams and Kimberly
Morosi for Defendant and Respondent.
______________________________
Appellant The Little Red Dog, Inc. (the rescue), challenges
the trial court order denying its ex parte application for relief
pursuant to Code of Civil Procedure section 473.1 Because the
trial court did not abuse its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual background
Respondent Marcia Mayeda, Director of the Los Angeles
County Department of Animal Care and Control (DACC) operates
animal shelters for domestic animals. As part of its programs,
DACC administers an adoption partner program, through which
it partners with independent nonprofit animal rescues and
adoption organizations that assist in finding homes for animals.
The rescue is an animal rescue organization that was previously
an adoption partner.
In March 2020, one of the rescue’s dogs bit its foster parent,
and, according to DACC, the rescue tried to conceal the incident
from DACC. Following an investigation and administrative
hearing, DACC revoked the rescue’s status as an adoption
partner.
The rescue files a petition for writ of mandate and a briefing
schedule is set
On March 29, 2021, the rescue filed a petition for writ of
mandamus challenging DACC’s decision. At the July 8, 2021,
trial setting conference, the trial court set forth a briefing
schedule: The rescue’s brief was due March 25, 2022; DACC’s
opposition was due April 22, 2022; and the trial was scheduled
for May 24, 2022.
1
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
Settlement discussions
In July 2021, the parties discussed the possibility of
settling, but did not reach an agreement. Between December 16,
2021, and February 16, 2022, the parties exchanged e-mails
regarding a potential settlement, but again failed to reach any
such agreement.
The rescue fails to file an opening brief
Even though the rescue’s opening brief was due March 25,
2022, it did not either file a brief or request a continuance. On
April 22, 2022, the date that DACC’s opposition was due, DACC
filed a notice of the rescue’s failure to file an opening brief and a
request for dismissal.
The rescue attempts to resume settlement discussions
On May 12, 2022, the rescue contacted DACC, seeking to
resume settlement discussions and, for the first time, sent a draft
settlement agreement. Without withdrawing its request for a
dismissal or agreeing to a continuance, DACC engaged in further
settlement discussions. DACC ultimately rejected the rescue’s
proposed settlement agreement and advised the rescue that it did
not appear that the parties would be able to reach a settlement.
The rescue files an ex parte application requesting a continuance
of the hearing and briefing deadlines; trial court order
On May 23, 2022, the day before trial, the rescue filed an
ex parte application requesting a continuance of the hearing and
of the brief filing dates. The trial court denied the rescue’s
application, finding that the rescue had failed to demonstrate
good cause and failed to request the continuance as soon as it
became evident that one was necessary. In addition, although
the rescue’s application did not seek relief pursuant to section
473, subdivision (b), the trial court analyzed that issue and found
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that the rescue had failed to make a showing of excusable neglect
to merit relief.
Judgment; the rescue’s appeal; dismissal of the appeal
Because the rescue failed to file an opening brief or lodge
the administrative record, the trial court concluded that it did not
meet its burden of proof. Accordingly, it denied the rescue’s
petition for writ of mandate. A judgment of dismissal was
entered, and the superior court clerk served notice of entry of
judgment on the parties on June 30, 2022.
On August 30, 2022, the rescue filed a notice of appeal from
the judgment of dismissal. (The Little Red Dog v. Director of
Los Angeles County Animal County Animal Care & Control,
B323074.) On September 27, 2022, we dismissed that appeal,
reasoning: “The notice of appeal filed on August 30, 2022 was
untimely as to the June 30, 2022 judgment from which the appeal
was taken. Moreover, no appeal was taken from the trial court’s
denial of the appellant’s motion for relief under Code of Civil
Procedure Section 473 which was separately appealable.
Accordingly, the notice of appeal filed August 30, 2022 is
dismissed as untimely.” (The Little Red Dog v. Director of
Los Angeles County Animal County Animal Care & Control,
B323074.)
The rescue’s ex parte application seeking reconsideration and
relief pursuant to section 473; trial court’s order; appeal
On August 26, 2022, the rescue filed an ex parte
application seeking (1) reconsideration of the denial of its request
for a continuance of the trial, (2) reconsideration of the denial of
relief pursuant to section 473, subdivision (b), and (3) relief
pursuant to section 473, subdivision (b). The trial court denied
the rescue’s requests for reconsideration as untimely and denied
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the request for section 473, subdivision (b), relief for the same
reasons set forth in its May 23, 2022, order.
On October 17, 2022, the rescue filed a notice of appeal
from “[a]n order, after judgment, denying plaintiff’s motion for
relief pursuant to 473(b).”2
DISCUSSION
I. Standard of review
As the parties agree, we review the trial court’s order
denying relief pursuant to section 473 for abuse of discretion.
(Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th
313, 319.) We review any subsidiary factual findings for
substantial evidence. (Zamora v. Clayborn Contracting Group,
Inc. (2002) 28 Cal.4th 249, 257–258.)
Appellant “‘correctly observe[s] that a trial court order
denying relief under section 473, subdivision (b) is “‘scrutinized
more carefully than an order permitting trial on the merits.’”
[Citation.] “Because the law favors disposing of cases on their
merits, ‘any doubts in applying section 473 must be resolved in
favor of the party seeking relief from default [citations].’”
[Citation.] But that said, “[a] motion to vacate a default and set
2
The rescue’s appeal is limited to this issue. (Soldate v.
Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069,
1073 [“‘Our jurisdiction on appeal is limited in scope to the notice
of appeal and the judgment or order appealed from’”].) To the
extent the appellate briefs suggest that the rescue is challenging
either the trial court’s denial of its application for reconsideration
or the judgment, its arguments fail. The appeal from the
judgment was dismissed. The order denying the request for a
continuance is not separately appealable. And, the order denying
reconsideration is not appealable or reviewable in this context.
(§ 1008, subd. (g).)
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aside judgment (§ 473) ‘is addressed to the sound discretion of the
trial court, and in the absence of a clear showing of abuse . . . the
exercise of that discretion will not be disturbed on appeal.’
[Citations.] Moreover, all presumptions will be made in favor of
the correctness of the order, and the burden of showing abuse is
on the appellant.”’ [Citation.]” (McClain v. Kissler (2019)
39 Cal.App.5th 399, 413.)
II. Relevant law
Section 473, subdivision (b), “provides ‘two distinct
provisions for relief’ from default or dismissal. [Citation.] One
affords discretionary relief, and the other makes relief
mandatory.” (Jackson v. Kaiser Foundation Hospitals, Inc. (2019)
32 Cal.App.5th 166, 173.)
The discretionary relief provision provides, in relevant part
that the trial 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), italics added.) “The party seeking
relief . . . bears the burden of proof in establishing a right to
relief,” including a satisfactory excuse for the default. (Hopkins
& Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) “Where ‘“a
party fails to show that a judgment has been taken against him
through his mistake, inadvertence, surprise or excusable neglect
the court may not grant relief. It has no discretion.”’ [Citation.]”
(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.)
Within the context of section 473, subdivision (b), mistake
and neglect are excusable if a reasonably prudent person under
similar circumstances might have made the same error.
(McClain v. Kissler, supra, 39 Cal.App.5th at p. 414.)
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In contrast, the mandatory relief provision provides, as
pertinent: “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.” (§ 473, subd. (b), italics added.)
III. The trial court did not abuse its discretion
Applying these legal principles, we conclude that the trial
court did not err in denying the rescue relief pursuant to section
473, subdivision (b).
A. No discretionary relief
The rescue was not entitled to discretionary relief because
it did not establish mistake or neglect.
Urging us to conclude otherwise, the rescue argues that its
failure to file an opening brief constitutes excusable neglect
because it relied on settlement negotiations with DACC when it
decided not to file the memorandum of points and authorities.
But that was not a mistake or the result of excusable neglect;
rather, the rescue made a conscious choice to disregard the court-
ordered filing deadline to save money. (McClain v. Kissler, supra,
39 Cal.App.5th at p. 405 [failure to respond to the complaint was
not the result of excusable mistake when the decision was
knowing and deliberate].) Under these circumstances, relief is
not available. (See Hearn v. Howard (2009) 177 Cal.App.4th
1193, 1206 [“‘The only occasion for the application of section 473
is where a party is unexpectedly placed in a situation to his
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injury without fault or negligence of his own and against which
ordinary prudence could not have guarded.’ [Citation.].”)
To the extent the rescue did not file an opening brief
because its “attorneys believed the parties would settle the case
without the need to file the brief or go to trial,” the trial court
acted well within its discretion in finding that this mistake was
not excusable. After all, as pointed out by DACC, the parties
went months without communicating about a settlement, and no
drafts were exchanged until May 2022. (San Bernardino City
Unified School District v. Superior Court (1987) 190 Cal.App.3d
233, 239 [“If there had been mutual bona fide efforts to
compromise and settle the action and petitioners had delayed
bringing the cross-complaint to trial because of a reasonable
belief induced by the nature of the negotiations that a trial could
probably be avoided, denial of the motion could be an abuse of
discretion. However, demands by one party for settlement and
consistent denials of liability and refusals to offer anything in
settlement by the other party do not amount to negotiations such
as would excuse delay in prosecuting the cross-complaint”];
contra, Stephens v. Baker & Baker Roofing Co. (1955)
130 Cal.App.2d 765, 771 [trial court abused its discretion in
denying a plaintiff relief pursuant to section 473 from a dismissal
entered for failure to prosecute when the evidence showed that
the plaintiff acted diligently and “the undenied fact [was] that
most of the delay in bringing the case to trial was due to
plaintiff’s acquiescence in defendants’ requests”].)
Levingston v. Kaiser Foundation Health Plan, Inc. (2018)
26 Cal.App.5th 309 is readily distinguishable. In that case,
“attorneys for [the] plaintiff . . . failed to file an opposition to a
motion for summary judgment. They had been substituted into
8
the case after [her] former attorneys were disqualified and the
opposition that the former attorneys had filed was stricken. At
the hearing on the motion, [the plaintiff’s] new counsel claimed
they had not known that they needed to file a new opposition
[and] requested relief from default under Code of Civil Procedure
section 473, subdivision (b), and a continuance. The trial court
found that new counsel’s failure was inexcusable neglect. It
therefore granted summary judgment.” (Levingston v. Kaiser
Foundation Health Plan, Inc., supra, at p. 311.) The Court of
Appeal found that “due to her new counsel’s neglect—which the
trial court quite properly found to be inexcusable—[the plaintiff]
was not entitled to relief under Code of Civil Procedure section
473, subdivision (b).” (Levingston v. Kaiser Foundation Health
Plan, Inc., at p. 311.) She was, however, entitled to a
continuance, partly because “there was no evidence that new
counsel’s failure to file an opposition was willful.” (Id. at p. 318.)
Here, in contrast and as set forth above, the rescue’s failure
to file an opening brief was admittedly deliberate. Thus, the trial
court did not abuse its discretion in finding no good cause to
grant the rescue’s request for a continuance. (Levingston v.
Kaiser Foundation Health Plan, Inc., supra, 26 Cal.App.5th at
p. 315.)
B. Public policy
The rescue further argues that public policy mandates
reversal. “There is, to be sure, a policy in favor of trying cases on
their merits. And it is an important one. But there are other
policies reflected in the requirement of section 473(b) that relief
be granted only where a party has made an honest and
reasonable mistake, policies implicating judicial efficiency, a fair
legal process and timely access to the courts.” (McClain v.
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Kissler, supra, 39 Cal.App.5th at p. 405.) In other words, the
public policy in favor of resolving cases on their merits does not
relieve a party seeking relief under section 473, subdivision (b),
from the statutory requirement of demonstrating mistake,
inadvertence, surprise, or excusable neglect.
C. No mandatory relief
Finally, the rescue was not entitled to mandatory relief
under section 473, subdivision (b). The provision under section
473 that allows for mandatory relief is limited to “defaults,
default judgments, and dismissals.” (Henderson v. Pacific Gas &
Electric Co. (2010) 187 Cal.App.4th 215, 228–229.) Here, the
judgment entered against the rescue was not the result of a
default.
Admittedly, the judgment was a dismissal. But that
dismissal followed the rescue’s failure to file an opening brief,
and the absence of such a brief constituted “an admission that
the motion [was] not meritorious and” could be denied.
(Cal. Rules of Court, rule 3.1113(a); § 1094; see also Noceti v.
Whorton (2014) 224 Cal.App.4th 1062, 1068 [judgment following
an uncontested trial was not tantamount to a dismissal].) Under
these circumstances, the judgment was not a dismissal
commensurate with the “‘procedural equivalent of a default.’”
(Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1148; see also
Leader v. Health Industries of America, Inc. (2001)
89 Cal.App.4th 603, 620 [“when 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—‘the only dismissals which are procedurally
equivalent to a default’”; the purpose of the amendment was
simply “‘“to put plaintiffs whose cases are dismissed for failing to
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respond to a dismissal motion on the same footing with
defendants who are defaulted for failing to respond to an action.”
[Citations.]’ [Citation.]”].) “[T]o read the mandatory provision of
Code of Civil Procedure section 473 to apply whenever a party
loses his or her day in court due to attorney error goes far beyond
anything the Legislature has done.” (Yeap v. Leake (1997)
60 Cal.App.4th 591, 605 (dis. opn. of Epstein, Acting P. J.).)
The Urban Wildlands Group, Inc. v. City of Los Angeles
(2017) 10 Cal.App.5th 993 (Urban Wildlands) is instructive. In
that case, the plaintiff filed a petition for writ of mandate; both
parties briefed the merits, but the plaintiff never lodged the
administrative record. The trial court found in the defendant’s
favor and entered judgment. The plaintiff then filed a motion for
relief. The trial court granted mandatory relief under section
473, subdivision (b), and the Court of Appeal reversed, reasoning
that “[t]he judgment from which plaintiff [sought] relief [was] not
a default, default judgment, or dismissal.” (Urban Wildlands,
supra, at p. 996.) There was a trial on the merits—the plaintiff
simply failed to present sufficient evidence by failing to lodge the
administrative record and therefore did not meet its burden of
proof. (Id. at p. 1002.) Thus, “[t]he judgment at issue [was] not a
default, default judgment, or dismissal” and “[t]he trial court
could not . . . grant mandatory relief under section 473,
subdivision (b).” (Urban Wildlands, supra, at p. 1002; contra, Gee
v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 491 [the
plaintiff was entitled to mandatory relief because her case was
dismissed for failure to pay change of venue fees and therefore
was not a dismissal based on the merits].)
That analysis squarely applies here. The trial court had a
trial on May 24, 2022. It found that the rescue did not meet its
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burden of proof because it failed to file an opening brief or lodge
the administrative record. There was no judgment of dismissal
warranting mandatory relief under section 473, subdivision (b).
DISPOSITION
The order is affirmed. DACC is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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