Filed 9/17/19 Alai v. Ikuta CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NILI N. ALAI,

Plaintiff and Appellant,

v.

BENJAMIN TAISUKE IKUTA,

Defendant and Respondent.

G055372

(Super. Ct. No. 30-2016-00848577)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed.

Nili N. Alai, M.D., in pro. per., for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen, McBride & Peabody and David P. Pruett for Defendant and Respondent.

Dr. Nili N. Alai appeals from the trial court’s order denying her Code of Civil Procedure section 473, subdivision (b), motion to vacate the judgment. She argues the court failed to grant relief despite her affidavit explaining that she, as a self-represented litigant, made excusable mistakes because she did not understand the law or applicable procedures. She also attacks the merits of the underlying judgment. We conclude the contentions are meritless and/or untimely. We affirm the order.

FACTS

A. Prior Relevant Litigation

Alai, a physician, filed a medical malpractice lawsuit against Barbara Shang (Malpractice Lawsuit). Ikuta, an associate of the law firm Carroll, Kelly, Trotter, Franzen, McBride & Peabody (the Law Firm), represented Shang. After losing the Malpractice Lawsuit, Alai filed a civil harassment restraining order against Ikuta and filed a motion for new trial in the Malpractice Lawsuit.

B. Civil Harassment Litigation

The civil harassment restraining order was not included in appellant’s appendix. Nevertheless, from other documents in the record we understand the alleged harassment related to Ikuta’s alleged misconduct during the Malpractice Lawsuit. Specifically, the record contains a discovery referee’s report regarding Alai’s motion for terminating sanctions and Shang’s motion to strike. The report stated Alai’s motion for terminating sanctions was based on Shang’s “alleged sharing of protected deposition testimony and exhibits with non-parties, tampering of witnesses, violating attorney work product and other egregious conduct.” The referee recommended the trial court deny the motion.

The record also contains Ikuta’s declaration, providing an account of the procedural history of the case. He asserted Alai sought the restraining order to prevent him from representing Shang in the Malpractice Lawsuit. Ikuta denied harassing Alai and stated the trial court (in the Malpractice Lawsuit) previously considered and rejected her allegations. Ikuta stated he never called or e mailed Alai or her office. He also never filed a complaint against Alai with the California Medical Board (the Board).

Ikuta believed the Board took “action” against Alai due to her “egregious misconduct” during the Malpractice Lawsuit that resulted in monetary and evidentiary sanctions. He explained Alai mailed information packets to many of Shang’s patients telling them they had been exposed to a highly contagious viral eye infection and requested they mail their medical records to Alai’s P.O. Box. Ikuta noted Alai filed a medical malpractice practice action against a different group of doctors working at Stanford hospital and made harassment allegations against the attorneys working for those doctors. Ikuta argued the litigation privilege civil harassment barred the restraining order.

In July 2016, before the preliminary injunction hearing, Ikuta withdrew as his own counsel and substituted in his place the Law Firm. The Law Firm filed an anti SLAPP motion, requesting $17,320 in attorney fees.

A few weeks later, on July 29, 2016, the court denied Alai’s preliminary injunction, deemed the motion to strike and anti-SLAPP motions moot, and scheduled a hearing date to consider Ikuta’s request for attorney fees. At the next hearing, the court asked the Law Firm to submit documentation clarifying the time devoted to preparing for the July 29 hearing and the briefing. In early September 2016, the trial court reviewed Ikuta’s documentation and awarded $15,742 in sanctions pursuant to section 527.6. On September 22, 2016, the court signed a final judgment denying Alai’s request for a civil harassment restraining order and awarded Ikuta attorney fees.

The record contains copies of Alai’s notice of errata and motion to vacate the judgment, however, both documents lack court file stamps to indicate when Alai filed them in the trial court. In any event, the record contains a minute order and notice of ruling confirming the trial court considered Alai’s motion to vacate and request for a new judgment. The notice of ruling, prepared by Ikuta’s counsel, stated, “After entertaining oral argument including lengthy argument by Alai, the [c]ourt denied [her] motion, finding no legal or factual basis to reconsider or otherwise revisit the [c]ourt’s prior orders or judgment in this matter.” The record contains copies of Alai’s objection to the notice of judgment and her motion for new trial, however, once again the documents do not contain file stamps or have any other indication they were filed in the trial court. Alai’s appendix does not contain any rulings concerning these documents.

C. First Appeal

On January 5, 2017, Alai filed a notice of appeal from the November 1, 2016, ruling denying her motion to vacate the judgment and the November 18, 2016, ruling denying her motion for new trial. In April 2017, this court filed an order dismissing her appeal as untimely. Our order noted the judgment was entered on September 22, 2016, and was served on November 1, 2016. The deadline to file an appeal was January 3, 2017.

D. Section 473 Motion to Vacate the Judgment

A few days after learning this court dismissed her appeal, Alai filed a section 473 motion to vacate the judgment and a motion to challenge the assigned trial judge (citing §§ 170.1, 170.3, & 170.6). In her section 473 motion, Alai stated her “multitude of errors included her failure to understand the due process requirement[s]” and “no notice” of the oral motion for attorney fees. Alai stated she was also entitled to relief due to judicial error, citing section 663. Alai also claimed the court should use its equitable powers to give her relief due to Ikuta’s “unclean hands.” Finally, Alai suggested she was entitled to mandatory relief under section 473 because the court’s ruling, “was the procedural equivalent of a default by depriving [her] of a day in court.”

With respect to Alai’s assertion there was excusable neglect, she provided a vaguely worded description of what she felt went wrong. For example, she claimed to have misunderstood the clerk’s notice “that a trial was not held in the matter therefore no [sic] judgment in the case.” It is unclear which clerk’s notice she is referring to, or why this misunderstanding was excusable. In addition, Alai maintains it was “excusable neglect, surprise, and error” to have no notice “or expectation” of Ikuta’s oral motion for sanctions at the end of the hearing.

Alai’s other examples of neglect relate mostly to trial tactics she speculates could have resulted in a better outcome for herself. For example, Alai stated she now realizes it was a mistake not to object to Ikuta’s untimely oral motion for attorney fees. She should have told the court that Ikuta’s oral motion violated her due process rights and should have been in writing. Alai asserted she also should have told the court Ikuta’s anti-SLAPP motion was untimely filed and served. Alai added she made a mistake by not asking the court for permission to submit an opposition to the attorney fee request, giving her the opportunity to brief the issue and present additional evidence. Alai did not explain what that evidence might be.

Alai blames her lack of legal training in seeking section 473 relief. She stated her “neglect was excusable as she lacked formal legal education, training, and a personal failure to understand the filing process, or requirements for due process of 16 days noticed motions.” “[Alai] accepts personal responsibility for what occurred, and will make whatever remuneration is appropriate to the [c]ourt for [her] novice errors in filing and checking the [c]ourt [d]ocket. [Alai] acknowledges her failure to properly understand the [civil harassment litigation] and [section] 527.6 prior to filing this instant action in April of 2016. [Alai] apologizes to the [c]ourt for the inconvenience and hardship cause by her excusable neglect and will accept whatever sanctions are applied.”

The trial court denied the motion for disqualification as untimely. One week later, on June 27, 2017, the court denied Alai’s section 473 motion to vacate the judgment.

E. The Second Appeal

Alai did not include a copy of her notice of appeal in the appellant’s appendix. On June 28, 2018, this court filed an order stating Alai filed her notice of appeal from the court’s ruling denying her motion to vacate on August 28, 2017. In the order, we denied Ikuta’s motion to dismiss, stating the following: “[Alai] does not purport to appeal from the underlying judgment, which was entered on September 22, 2016. Indeed, on April 27, 2017, this court dismissed a prior appeal by [Alai] from the underlying judgment because it was an untimely appeal. (Alai v. Ikuta, case No. 54460.) [¶] [Ikuta] nonetheless moves to dismiss the instant appeal as an untimely attempt to appeal the underlying judgment. Certainly, respondent is correct that this appeal cannot revive [Alai]’s untimely appeal of the underlying judgment. Any arguments raised by [Alai] in the yet-to-be-filed opening brief that purport to directly challenge the judgment (as opposed to the issues raised by the section 473, subdivision (b) motion) will not be cognizable. [¶] But an order denying a statutory motion to vacate the judgment under . . . section 473 is appealable. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) And the trial court’s order denying relief under section 473 is precisely what [Alai] asserts is the subject of this appeal. There is no assertion in the motion to dismiss that this appeal is untimely with respect to the June 27, 2017 order. Contentions in the motion to dismiss concerning the merits of [Alai]’s motion are not pertinent to the question of whether this is a timely appeal from an appealable order.”

F. Appeal Following Motion to Disqualify Ikuta in Malpractice Lawsuit

In August 2015, the trial court in the Malpractice Lawsuit denied Alai’s motion to disqualify Ikuta and the Law Firm from representing Shang. (Alai v. Ya-Hui Shang (Aug. 29, 2017, G053136) [nonpub. opn.]). Soon after appealing that order, Alai filed the request for a civil harassment restraining order. All litigation concerning the restraining order took place while the disqualification matter was pending on appeal. On August 28, 2017, Alai filed her notice of appeal from the court’s denial of her section 473 motion. The appeals overlapped for only one day. On August 29, 2017, this court filed its opinion, which affirmed the trial court’s order denying Alai’s motion to disqualify the Law Firm. (Alai v. Ya-Hui Shang, supra, G053136).

DISCUSSION

We review an order denying a motion for relief under section 473, subdivision (b), for abuse of discretion. (See Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 [“‘[a] ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse’”].) A party seeking relief under section 473, subdivision (b), “bears the burden of establishing a right to relief.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.) Alai’s many allegations can be summarized and condensed as follows: She is entitled to section 473 relief because she did not understand the proceedings, she lacked litigation experience, and she did not expect to have to defend herself against an oral motion for attorney fees. We conclude the trial court did not abuse its discretion because Alai did not carry her burden for relief under section 473. Her realization, after the court’s ruling, that she should have objected, or requested time to oppose, or filed the appeal sooner, do not justify relief under section 473, subdivision (b).

We recognize a self-represented litigant’s understanding of the rules of law and procedure is, as a practical matter, more limited than that of an experienced attorney. Although in some instances, “a mistake of law may be excusable when made by a layman but not when made by an attorney” (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479), “[t]here is nothing in section 473 to suggest it ‘was intended to be a catch-all remedy for every case of poor judgment . . . which results in dismissal.’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611 612 (State Farm).)

“An honest mistake of law is a valid ground for relief when the legal problem posed ‘“is complex and debatable.’” [Citations.] The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconception and the justifiability of the failure to determine the correct law. [Citation.] ‘[W]here the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice [citation], general ignorance of the law or lack of knowledge of the rules [citation], or unjustifiable negligence in the discovery or research of the law, laxness or indifference [citations][,] normally relief will be denied.’ [Citation].” (State Farm, supra, 90 Cal.App.4th at p. 611.) Alai’s failure to object, file opposition, or timely file a notice of appeal, are mistakes of law. Indeed, she admits her claimed mistakes are due to a general ignorance of the law and rules. Under the circumstances of this case, the trial court did not abuse its discretion in concluding Alai did not satisfy her burden of proving excusable neglect.

Alai had a full and fair opportunity to be heard. This is not a case where the party seeking relief under section 473, subdivision (b), never had his or her day in court and is seeking to set aside a default judgment. Alai had her day in court and her loss was not due to the bad advice of an attorney or a third party misrepresentation, but due to her inability to present the case as a licensed attorney would. As the court in Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985, made clear, self-represented litigants are generally not entitled to special treatment.

We also reject Alai’s alternative argument the court erred in failing to grant relief under the mandatory “‘attorney affidavit of fault’” provision of section 473, subdivision (b). She maintains the record contains her declaration submitted in support of the motion “provided ample evidence” of a sworn attorney affidavit. The declaration’s signature line and contents clearly announce Alai was a licensed physician, not an attorney. Yet, Alai appears to take the position that because she acted as her own attorney she was entitled to mandatory relief under section 473, subdivision (b). We disagree.

The mandatory provision states the following: “[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.” (§ 473, subd. (b), italics added.)

The statute’s “mandatory relief provision has three purposes: (1) ‘to relieve the innocent client of the consequences of the attorney’s fault’ [citations]; (2) ‘to place the burden on counsel’ [citation]; and (3) ‘to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney’ [citation]. [¶] These purposes are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal. [Citations.]” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.)

Alai was self-represented below and on appeal. Her lack of success in the trial court and in filing an untimely appeal was not due to the mistake or neglect of her counsel. As described above, the mandatory relief requires an attorney affidavit of fault attesting that counsel, rather than Alai, was responsible for the purported mistakes and errors of law. As a litigant in propria persona, her motion for relief could not have been supported by an affidavit of fault from counsel. The mandatory provision is not applicable in this case.

Alai also refers to subdivision (d), of section 473 permitting the trial court to correct clerical mistakes. However, in the briefing Alai does not point to any clerical errors. Alai also does not present supporting legal analysis explaining why this provision providing relief for clerical mistakes should apply in her case. We deem the issue waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785, [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

DISPOSITION

We affirm the order denying the motion for relief under section 473, subdivision (b). Respondent is awarded his costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

IKOLA, J.