2012-00122852-CU-BC

Jason Russell vs. Marcia Fritz

Nature of Proceeding: Motion to Set Aside Order for Terminating Sanctions and Vacate

Filed By: Rosenberg, Sid M.

Plaintiff Russell’s motion pursuant to Code of Civil Procedure §473(b) to vacate the
dismissal of this action is reluctantly GRANTED as follows.

Plaintiff moves to vacate the order imposing terminating sanctions and dismissing this
action due to plaintiff’s repeated failure to comply with the Court’s discovery orders.
Plaintiff was previously represented by attorney Gerald Filice, who has provided a
declaration of fault to the effect that he alone was responsible for any failures which
culminated in the dismissal of this action. Although defendant raises numerous
reasons to deny the present motion including but not limited to discrepancies in Mr.
Filice’s declaration of fault and the facts set forth therein not constituting any excusable
mistake, neglect, inadvertence or surprise, the motion for relief will be granted.

This Court is persuaded that Mr. Filice’s conduct is not properly attributable to plaintiff
himself and refusing to vacate the dismissal here will result in a gross miscarriage of
justice. Based on Mr. Filice’s obvious and complete failures to protect his client’s
interests, this case warrants the exercise of this Court’s discretion to grant the motion
to vacate.

The First District Court of Appeal has held that “extrinsic fraud” is a broad concept
which encompasses almost any set of extrinsic circumstances that deprive a party of a
fair adversary hearing, while “extrinsic mistake” warrants equitable relief where other
misconduct or neglect results in an unjust judgment, without a fair adversary hearing. (
Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114.) In Whittier Union, the
appellate court affirmed the trial court’s grant of relief from a dismissal entered 20
months before and regardless of the six month limitation in Code of Civil Procedure
§473 in light of “extrinsic fraud” or “extrinsic mistake.” ( Whittier Union High Sch. Dist. v. Superior Court (Carroll) (1977) 66 Cal.App.3d 504, 507-508.) Specifically, the Second
District stated in pertinent part:

“The doctrine of ‘extrinsic mistake’ has been used to grant relief to a client who
has relied to his detriment on a dishonest or incompetent lawyer to handle his
legal business. The ‘mistake’ involved is a species of legal fiction used to justify
court action, in that the real mistake involved is either that of the client in
employing unsatisfactory counsel or that of the attorney in failing to meet his
professional obligations.” (Id.)

In that case, the plaintiffs’ attorney had forged his clients’ signature to a settlement
agreement, forged their endorsement to the settlement check and then entered
dismissal of the action pursuant to the settlement despite being wholly unauthorized
and without any knowledge or consent of plaintiffs. (Id.) It is worth noting that the
offending attorney was disciplined, disbarred and incarcerated. (Id., at 506.)

Similarly, in Buckert v. Briggs, the Fourth District Court of Appeal held that relief from a
judgment for the defendant was proper where plaintiffs’ attorney himself engaged in
misconduct by failing to advise his clients of the trial date and then failing to appear at
the trial since plaintiffs were entitled to assume the attorney was representing their
interests. (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301-302.) The court explained,
“[T]he attorney’s conduct, in effect, obliterates the existence of the attorney-client
relationship and for this reason his negligence should not be imputed to the client. …
In the case at bench the evidence supports a finding, implied in the order granting the
motion to vacate, plaintiff’s attorney…in effect was not representing them as their
attorney, although he purported to do so and they had no reason to believe he would
not represent them.” (Id., at 301.) Under these circumstances, the trial court was
entitled to conclude the attorney’s failures with respect to his clients constituted
misconduct and the resulting judgment against them was the product of extrinsic
surprise and mistake without negligence on their part. (Id., at 301-302.)

As discussed above, the present action was dismissed as a result of attorney Filice’s
own conduct and plaintiff did little, if anything, to cause or contribute to the dismissal.
Based on the present record and the authorities cited above, this Court holds that
attorney Filice’s (mis)conduct and other failures to protect his client not only effectively
obliterated the attorney-client relationship but also left plaintiff Russell without legal
representation despite the belief his interests were be protected by counsel. Thus,
attorney Filice’s conduct to the detriment of his client can be properly characterized as
extrinsic fraud or mistake and this justifies granting relief from the 3/15/2012 order of
dismissal even relief may otherwise be inappropriate under the express terms of Code
of Civil Procedure §473.

Accordingly, the motion to vacate is granted and the Court’s prior 8/12/2013 order
dismissing this action is hereby vacated.

The clerk is directed to return this action to the civil active list for further
proceedings, including a Case Management Conference in Department 39 in the
next 30-60 days.

The Court grants in part defendant’s request for attorney fees as against plaintiff’s
former counsel, Mr. Filice, in the amount of $2,400, representing six (6) hours for
preparing the opposition to the present motion plus an additional six (6) hours for
preparing the motions culminating in the terminating sanctions, all at the reasonable
hourly rate of $200. Sanctions to be paid by Attorney Filice no later than 12/6/2013
and if not paid by that date, defendant may pursuant to CRC Rule 3.1312 prepare for
the Court’s signature a formal order granting the sanctions which may then be
enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th
608, 615.)

Defendant to serve a copy of this ruling on attorney Filice and file proof of
service of same within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)