Filed 1/22/20 Jackson v. L.A. Youth Network CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

NICOLE Y. JACKSON,

Plaintiff and Appellant,

v.

LOS ANGELES YOUTH NETWORK,

Defendant and Respondent.

B290168

(Los Angeles County

Super. Ct. No. BC565957)

APPEAL from an order of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Reversed.

Nicole Y. Jackson, in pro. per., for Plaintiff and Appellant.

Tyson & Mendes, Regina Silva, Kyle Maland and Christopher Wesierski for Defendant and Respondent.

Plaintiff Nicole Y. Jackson appeals from an order denying her motion to set aside an order dismissing her wrongful termination action against her former employer, defendant Los Angeles Youth Network (Youth Network). After Jackson failed to appear at a hearing set for a case management conference (CMC) and Jackson’s motion for leave to amend, the trial court issued an order to show cause re dismissal. Upon Jackson’s failure to appear at the hearing on the order to show cause, the trial court dismissed the action. Almost six months later, Jackson sought discretionary relief from the dismissal under Code of Civil Procedure section 473, subdivision (b), on the basis she lacked actual notice of the hearings and dismissal because she had not received the mailed notice from Youth Network’s attorneys at her home address. Jackson had earlier apprised the court of problems she had receiving mail at her home address and requested leave to receive notice at a post office box, but the court ordered Jackson to use her physical address for service. Jackson learned of the dismissal just six weeks prior to the filing of her motion. The trial court denied Jackson’s motion, finding she had not shown grounds for relief under section 473, subdivision (b), and she had not been diligent in bringing her motion.

On appeal, Jackson contends the trial court abused its discretion in denying her motion. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jackson’s Complaint and the Dismissal
B.
Jackson filed this action as a self-represented litigant on December 8, 2014. The complaint alleged causes of action against Youth Network for wrongful termination in violation of public policy, breach of implied contract, and breach of the implied covenant of good faith and fair dealing. Jackson alleged she worked for Youth Network as a counselor at a youth shelter until Youth Network terminated her employment for “insubordination” because “she refused to conduct an illegal search of [a] youth’s room.” The civil case cover sheet filed with Jackson’s complaint identified Jackson’s address as “P.O. Box 86693.”

After the trial court ordered Jackson to designate a physical address for service, on April 27, 2015 Jackson filed a notice of change of address providing 206 W. 6th Street #506 as her address for service. The next day Jackson failed to appear for the CMC. The court’s minute order states Jackson “called the court this morning and inquired about court call,” and “[c]ourt call was not set up.” The court issued an order to show cause re sanctions and/or dismissal, setting a hearing for June 11, and continued the CMC to the same date. Although Jackson had designated a physical address the prior day, the order noted Jackson “listed a post office box as a return address but needs a physical address.” Jackson appeared at the June 11 hearing, at which the trial court discharged its order to show cause and confirmed Jackson’s physical address. The court continued the CMC to August 12, 2015.

According to the court’s minute order, at the August 12 CMC, “[a]fter much discussion with [Jackson], the court confirmed [her] address is: [¶] 206 W. 6th Street, #560.” The court noted Jackson’s correct apartment number was 560, not 506 as stated on Jackson’s court filings. The court again continued the CMC to January 13, 2016 and directed Youth Network to give notice. In its notice, Youth Network stated, “[Jackson] was further reminded that the law requires that she be served with documents at a physical address.” Following the hearing, Jackson filed a notice of change of address stating that her unit was “#560.”

After further continuances, Jackson failed to appear on May 4, 2016 for the continued CMC. The court issued an order to show cause re dismissal of the entire action for Jackson’s failure to appear and failure to prosecute the action. Jackson appeared at the June 6, 2016 hearing, and the trial court discharged the order to show cause.

On or about July 13, 2016 Jackson reserved a February 2, 2017 hearing on a motion for leave to amend her complaint. On November 22, 2016 the clerk mailed Youth Network’s attorneys a notice continuing the CMC, then set for December 8, 2016, to February 2, 2017. The court directed Youth Network to give notice by mail to Jackson.

Jackson failed to appear at the February 2, 2017 CMC and hearing on her motion to amend. The court again issued an order to show cause re sanctions and/or dismissal of the case for Jackson’s failure to appear and set a hearing for March 15, 2017. The court stated, “Failure of [Jackson] to appear on the above date will be deemed by the court to be [Jackson’s] consent to dismiss the case.” The court ordered Youth Network to give notice, which it did by mail on February 17.

Jackson failed to appear at the March 15, 2017 hearing. In a signed minute order, the trial court dismissed Jackson’s action for “failure to appear this date; failure to appear on February 2, 2017 and failure to follow court orders.” On March 31, 2017 Youth Network mailed Jackson notice of the court’s order of dismissal.

C. Jackson’s Motion To Set Aside Dismissal
D.
On September 13, 2017 Jackson filed a motion for discretionary relief from dismissal under section 473, subdivision (b). Jackson attached a declaration in which she stated she had not received “any correspondences from [Youth Network] or the court regarding the December 8, 2016 continuance, the February 2, 2017 hearing, or the subsequent hearing on March 15, 2017.” Jackson stated she appeared on December 8, 2016 for the CMC and “was told by the clerk that the matter had been taken off the calendar.” Because of illness Jackson could not attend the February 2, 2017 hearing on her motion for leave to amend. On February 1 Jackson cancelled her hearing reservation on the superior court’s online reservation system and “did not believe the case would be called” the next day. Jackson then rescheduled her hearing for August 25, 2017. Jackson attached e mails sent to her by the reservation system confirming the cancellation of the February 2 hearing reservation and the rescheduling of the hearing for August 25, 2017.

Jackson averred she “previously received all mail at a [P.O.] Box due to delivery concerns. [Youth Network] complained to the court about the use of a [P.O.] Box. I informed the court that I was unable to provide a physical address due to, issues with missing/undelivered/timely mail receipt, and confidentiality issues with giving out a physical address in addition to logistical difficulties with mail pickup to a physical address and that a [P.O.] Box was being used in all other pending cases in Los Angeles County.” Jackson stated the court had ordered her to use a physical mailing address instead of the post office box address she preferred. Jackson declared, “This has resulted in lost, and/or missing mail and an untimely delay in receiving mail that has severely prejudiced my ability to fully exercise due process of law by being . . . made aware of the case requirements, scheduling and deadlines.” Jackson attached e mail correspondence from July 2015 between her and Youth Network’s attorney Regina Silva, in which Silva stated, “The physical address was required by the [c]ourt, not requested. . . . We will not be serving you at a [P.O.] Box. The Judge made it clear to you at the first appearance that by law, you were required to provide a physical address to us and the [c]ourt.”

Jackson declared that because she did not receive any correspondence from Youth Network regarding the February 2 or March 15 hearings, she had no actual notice of the order of dismissal until August 1, 2017 when she “review[ed] the court file.” The trial court docket shows that on August 1 Jackson filed discovery requests to Youth Network, including requests for admission and for production of documents.

In her motion, Jackson argued Youth Network failed to give her notice of the continuance of the CMC to February 2, 2017, and she “learned of the dismissal on August 1, 2107 and . . . request[ed] relief as expeditiously as possible.” Jackson also asserted the use of a post office box was not prohibited by law.

Youth Network opposed the motion, arguing Jackson failed to show surprise under section 473, subdivision (b), because she was served at the physical address for service she had filed with the court. Youth Network also argued Jackson’s motion was not brought within a reasonable time under section 473, subdivision (b), because Jackson waited almost six months after the dismissal to contact the court or Youth Network. Youth Network attached a copy of the notice of change of address filed by Jackson on August 12, 2015. Youth Network also attached a copy of the court’s notice of the continuance of the December 8, 2016 CMC to February 2, 2017, but it did not submit any evidence it gave Jackson notice of the continuance by mail, as directed by the trial court. Youth Network provided proofs of service by mail to Jackson’s physical address of the court’s August 12, 2015, June 6, 2016, February 2, 2017, and March 15, 2017 rulings. Jackson did not file a reply.

After a hearing on April 3, 2018, the trial court denied Jackson’s motion. In its minute order, the court recited Jackson’s failures to appear on May 4, 2016 for the CMC (for which an order to show cause was issued, then discharged); on February 2, 2017 for the continued CMC and Jackson’s motion to amend; and on March 15, 2017 for the order to show case re sanctions or dismissal. The court did not consider Jackson’s cancellation of the February 2 hearing reservation the prior day. The court noted Jackson’s assertion that “use [of] the physical address, as opposed to a [P.O.] Box, caused mail to be lost or for her to miss mail,” but stated Jackson provided the physical address for service to the court in April 2015 and confirmed the address again in August 2015. The court reasoned, “[Jackson] offers no facts in her declaration to support this conclusion and to explain why she did not receive the notice at the address she identified and that the [c]ourt confirmed with her as her address. Further, [Jackson] does not offer any facts to show that there are grounds for relief under . . . section 473(b), i.e., that the dismissal on March 15, 2017 was the result of her own mistake, surprise, inadvertence, or excusable neglect.” The court also found, “There are no facts to explain [Jackson’s] delay in ascertaining the dismissal or in waiting to file the pending motion. As a result, [Jackson] has not provided a satisfactory explanation for the 5 month, 29 day delay in seeking relief from the dismissal.”

Jackson timely appealed.

DISCUSSION

A. Standard of Review
B.
“‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of [an] abuse’” of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; accord, Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929 (Austin).) Under this standard, “we may reverse only if we conclude the trial court’s decision is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 [affirming grant of equitable relief from default judgment]; accord, Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) “That a different decision could have been reached is not sufficient because we cannot substitute our discretion for that of the trial court. The trial court’s ruling must be beyond the bounds of reason for us to reverse it.” (Mechling, at p. 1249; accord, Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)

However, there is a public policy favoring a trial on the merits. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 978, 985 [granting equitable relief from default judgment due to defendants’ failure to pay entirety of filing fee for answer based on incorrect information from clerk’s office]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694, 701-703 [trial court abused its discretion in denying motion under § 473, subd. (b), for relief from default judgment entered after defendant’s insurer failed to file answer].) Moreover, “[t]he general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; accord, Austin, supra, 244 Cal.App.4th at p. 928.) “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]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.’” (Rappleyea, at p. 980; accord, McClain v. Kissler (2019) 39 Cal.App.5th 399, 413; Fasuyi, at p. 696 [“[T]he remedial relief offered by section 473 is ‘highly favored and is liberally applied.’”].)

C. Applicable Law
D.
Section 473, subdivision (b), provides in part, “The court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” To qualify for discretionary relief under section 473, subdivision (b), “the party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised that ground in a procedurally proper manner, within any applicable time limits.’” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229 (Henderson); accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.)

As the Court of Appeal in Henderson explained, “‘“[T]he term ‘surprise,’ as used in section 473, refers to ‘“some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”’ [Citation.]” Finally, as for inadvertence or neglect, “[t]o warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.”’” (Henderson, supra, 187 Cal.App.4th at p. 230; accord, Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) The trial court has discretion to grant relief under section 473, subdivision (b), “based on its evaluation of the nature of the mistake or error alleged and the justification proffered for the conduct that occurred.” (Austin, supra, 244 Cal.App.4th at p. 928.)

“[R]elief is not warranted unless the moving party demonstrates diligence in seeking it.” (Huh v. Wang, supra, 158 Cal.App.4th at pp. 1420-1421 [affirming denial of discretionary relief under § 473, subd. (b), where appellant waited more than three months after notice of entry of judgment to file his motion]; accord, Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [“Given the absence of evidence explaining the seven-week delay in seeking to set aside the dismissal, the diligence requirement was not satisfied.”].) “A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 (Minick); accord, Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184 [“unexplained delays of anything approaching three months after full knowledge of the entry of the default” are untimely as a matter of law].) Whether a party has acted diligently is a question of fact for the trial court, which depends on all of the circumstances of the particular case. (Minick, at p. 33; Younessi, at p. 1145.)

E. The Trial Court Abused Its Discretion in Denying Jackson’s Motion for Relief from the Dismissal
F.
1. Jackson provided an adequate excuse for her failures to appear
2.
The trial court based its dismissal on Jackson’s failures to appear at the May 4, 2016 and February 2 and March 15, 2017 hearings. As discussed, Jackson called the court the day of the May 4, 2016 hearing to request she be allowed to appear by court call, but a court call appearance was not set up, and Jackson failed to appear. Although the record does not reflect why Jackson was unable to appear in person for the May 4, 2016 hearing (or why she could not appear by court call), Jackson’s contacting the court and then appearing in person at the hearing on June 11, 2016, leading the court to discharge the order to show cause re sanctions and/or dismissal, shows some diligence by Jackson.

Jackson argues she had no actual notice of the February 2 and March 15 hearings because Youth Network did not mail her notice of the continuance of the CMC to February 2 and she did not receive actual notice of the March 15 hearing or the dismissal. Youth Network does not dispute that it failed to provide Jackson notice of the continuance of the CMC to February 2, instead arguing Jackson failed to appear for the hearing on her motion for leave to amend set for the same day and the court properly found Jackson did not provide an adequate excuse for not appearing on her own motion. Jackson responds she cancelled the hearing on her motion to amend through the court’s online reservation due to sickness and believed the matter would be taken off calendar.

We agree with Jackson that her illness on the day of the hearing provided a basis for excusing her failure to appear. (Minick, supra, 3 Cal.App.5th at p. 32 [“Without requiring the declaration of a physician, a number of California decisions have upheld orders granting discretionary relief under section 473, subdivision (b), because of counsel’s illness.”]; Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 280 [“Illness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect . . . .”]; see Smith v. Smith (1904) 145 Cal. 615, 618 [self-represented litigant’s failure to appear at trial due to sickness was “providential accident . . . for which the code provides a new trial may be granted”].) Moreover, Jackson cancelled the reservation on her motion and “did not believe the case would be called.”

Although Jackson also failed to appear at the February 2, 2017 CMC, she had appeared for the CMC on December 8, 2016, as previously scheduled, when a clerk informed her the conference had been taken off calendar. Youth Network asserts the court served notice on all parties of the continuance, but the court’s November 22, 2016 notice continuing the CMC to February 2 expressly directed Youth Network “to give notice by mail . . . to all parties and to file proof of service of such notice.” Youth Network failed to serve Jackson with notice. Jackson therefore did not learn of the continuance, and her failure to appear at the February 2, 2017 CMC was due to “‘“surprise” . . . “‘. . . which ordinary prudence could not have guarded against.’”’” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1206.)

Jackson’s failure to appear on February 2 was the catalyst for the court setting the order to show cause hearing on March 15. Although Youth Network mailed Jackson notice of the March 15 hearing, Jackson averred she did not receive the notice due to mail delivery problems at her physical address. After the court dismissed Jackson’s case for her failure to appear at the March 15 hearing, Youth Network mailed notice to Jackson, but Jackson again did not receive the notice. Youth Network contends Jackson’s nonreceipt of the notices has no bearing on the availability of relief under section 473, subdivision (b), arguing the proper mailing of a letter “creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed,” and that “[d]ue process ‘does not require actual receipt . . . .’” While Youth Network is correct there is a presumption that a properly mailed letter is received, this does not negate the availability of relief under section 473, subdivision (b), where a litigant has not received actual notice by mail despite taking reasonable steps to receive his or her mail.

Youth Network’s argument Jackson did not take reasonable steps to provide an adequate mailing address to the court rings hollow. Jackson informed the court she had “issues with missing/undelivered/timely mail receipt” at her physical address and requested to use a post office box for mailings. The court denied that request and ordered Jackson to accept service at her physical address. Contrary to the trial court’s conclusion Jackson “offer[ed] no facts in her declaration . . . to explain why she did not receive the notice at the address she identified,” Jackson explained in her declaration there was a history of mail delivery problems at her physical address, of which she had previously apprised the court and opposing counsel. Although it may be Jackson could have done more to investigate the mail delivery problem at her home address, her conduct was reasonable in light of the fact she had received mailed notices without issue from April 2015 until February 2017. Under these circumstances, Jackson’s failure to receive notice of the February 2, 2017 hearing and the March 15, 2017 hearing on the order to show cause did not involve the type of “‘“‘“negligence of [her] own, which ordinary prudence could not have guarded against,”’”’” and any neglect was “‘“such as might have been the act of a reasonably prudent person under the same circumstances.”’” (Henderson, supra, 187 Cal.App.4th at p. 230.)

3. Jackson moved for relief under section 473, subdivision (b), within a reasonable time from learning of the dismissal
4.
As discussed, to obtain relief under section 473, subdivision (b), the motion for relief must be made “within a reasonable time,” not to exceed six months after the dismissal, judgment, or order. “[T]he critical triggering event for seeking relief [is] notice of . . . entry . . . .” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1421.) Here, Youth Network mailed Jackson notice of the order of dismissal on March 31, 2017. It is undisputed Jackson did not move for relief until September 13, 2017, about five and a half months later.

Jackson contends the trial court abused its discretion by failing to consider her lack of actual notice of the dismissal before August 1, and her reasonable need for six weeks to prepare her motion for relief from dismissal. We agree Jackson showed reasonable diligence once she discovered the dismissal.

The trial court found Jackson had provided “no facts to explain [her] delay in ascertaining the dismissal or in waiting to file the [section 473] motion.” This finding ignores Jackson’s explanation that she previously had a problem receiving her mail at her physical address, which Jackson had brought to the court’s attention. There is no evidence Jackson became aware of the dismissal before August 1, 2017, when she reviewed the court file to facilitate service of her discovery requests and to prepare for the hearing on her motion for leave to amend. Jackson had not received any documents from Youth Network regarding the dismissal, and she believed the next scheduled hearing was on August 25, the date Jackson had scheduled online for her motion for leave to amend. Although Jackson could have exercised greater diligence in checking on the progress of her case, her failure to do so before August 1, 2017 was not so unreasonable as to warrant a finding of inexcusable neglect. As Jackson asserted in the trial court, upon discovering the dismissal, she “request[ed] relief as expeditiously as possible.” Jackson contends on appeal she had to discover when and why the court ordered dismissal, review the court file, and draft and file her motion and supporting documents, all without the assistance of counsel. In moving for relief within six weeks of learning of the dismissal, Jackson’s conduct was well within the range considered timely. (See Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [finding timely motion to vacate made within six weeks after plaintiff learned of the order from which relief was taken]; Minick, supra, 3 Cal.App.5th at p. 34 [noting courts have found § 473 motions filed within seven to 10 weeks timely]; Outdoor Imports, Inc. v. Stanoff (1970) 7 Cal.App.3d 518, 524 [nine-week delay in filing motion after discovery of default not unreasonable].)

Midwest Television, Inc. v. Scott, Lancaster, Mills & Atha, Inc. (1988) 205 Cal.App.3d 442, relied on by Youth Network, is inapposite. There, the Court of Appeal affirmed the trial court’s denial of the defendant’s motion under section 473, subdivision (b), for relief from notice of deemed admissions because the motion was untimely filed “well beyond the [former] statutory 30-day period.” (Midwest Television, at p. 452.) Further, although the defendant’s attorney asserted the plaintiff had mailed the notice of deemed admissions to the wrong address, the court found the notice was mailed to the proper address “as shown on the last pleading received by plaintiffs,” in accordance with section 1013. (Midwest Television, at p. 453.) Unlike the facts here, it was the fault of the defendant’s lawyer in failing to update his mailing address that caused the late receipt of the notice.

Moreover, “‘when relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.’” (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 981-982.) Under the circumstances here, the trial court abused its discretion in failing to grant Jackson relief from dismissal given that Jackson provided facts sufficient to show her failures to appear were due to surprise or excusable neglect and she was reasonably diligent in moving for relief once she discovered the dismissal.

DISPOSITION

The order is reversed. Jackson is to recover her costs on appeal.

FEUER, J.

We concur:

ZELON, Acting P. J.

SEGAL, J.