Filed 3/28/14 Powell v. Superior Court 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


CHARLES ERIC POWELL,

     Petitioner,                                                       G047710

         v.                                                            (Super. Ct. No. 07CC05613)

THE SUPERIOR COURT OF ORANGE                                           OPINION
COUNTY,

     Respondent;

COUNTY OF ORANGE et al.,

     Real Parties in Interest.


                   Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, David R. Chaffee, Judge. Petition granted.
                   Ralph E. Harrison II for Petitioner.
                   No appearance for Respondent.
                   Lynberg & Watkins, Norman J. Watkins, S. Frank Harrell and
Melissa D. Culp for Real Parties in Interest.

                                             *               *               *
                                       INTRODUCTION
               Charles Eric Powell appeals from an order denying his motion to vacate
and set aside a judgment of dismissal entered for delay in prosecution under Code of
                                                    1
Civil Procedure section 583.410, subdivision (a). He argues he was entitled to relief
under section 473, subdivision (b) (section 473(b)) and under the trial court’s inherent
equitable power to vacate or set aside a dismissal on the ground of extrinsic fraud or
mistake.
               We treat the appeal from the order denying Powell’s nonstatutory motion
made on equitable grounds as a petition for writ of mandate. We conclude the trial court
abused its discretion in failing to set aside the dismissal on equitable grounds and,
therefore, grant the petition and order the issuance a writ of mandate directing the trial
court to grant Powell’s motion and to vacate the judgment. Because Powell should have
been granted equitable relief, we do not address whether he was entitled to relief under
section 473(b).


                                        BACKGROUND
                                               I.
                  Powell’s Complaint/Dismissal for Delay in Prosecution
               In May 2007, Powell filed a complaint against the County of Orange, the
Orange County Sheriff, and two Orange County Sheriff’s deputies (Defendants),
asserting causes of action for civil rights violations, conspiracy to violate civil rights,
false arrest, negligence, intentional infliction of emotional distress, violation of the
California Constitution, assault and battery, and malicious prosecution. Powell filed a
first amended complaint (the Complaint) in July 2007. The Complaint was filed by
Powell’s then counsel of record, Mark H. Williams.

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

                                               2
              The Complaint alleged that in November 2005, two sheriff’s deputies
physically abused and injured Powell during a detention following a traffic stop, and,
thereafter, falsely charged Powell with attempting to escape arrest. During trial of the
criminal charges against Powell, a videotape of the incident surfaced showing he had not
attempted to escape arrest, and the deputies admitted their trial testimony was false. The
jury returned a verdict of not guilty on the criminal charges against Powell.
              Defendants answered the Complaint in September 2007. In December
2007, the trial court granted Defendants’ motions to compel responses to special
interrogatories, form interrogatories, request for production of documents, and request for
statement of damages. The court imposed monetary sanctions against Powell and
Williams.
              In September 2009, the trial court issued a minute order setting an order to
show cause regarding dismissal pursuant to section 583.410, subdivision (a) for delay in
prosecution. The court found there had been no activity in the case since December
2007. When Williams did not appear at the hearing on the order to show cause, the court
issued an unsigned minute order dated October 7, 2009, dismissing the action.


                                            II.
                   Powell’s First Motion to Set Aside the Dismissal
              In April 2010, Powell, in propria persona, filed a “Motion to Set Aside
Dismissal Judgment” (the first set-aside motion). The first set-aside motion was made
pursuant to the automatic relief/attorney fault provision of section 473(b) and included a
declaration from Attorney Williams, stating he did not receive the court’s order to show
cause because he had changed his business address. He stated, “[t]he failure to receive
the motion to dismiss was due to my mistake, inadvertence, surprise, or neglect,” and
“[d]ue to my mistake, inadvertence, surprise, or neglect I did not properly keep track of



                                             3
this case and did not respond to discovery.” Defendants opposed the first set-aside
motion.
              On May 21, 2010, the same day as the hearing on the first set-aside motion,
Powell filed a substitution of counsel, naming Ralph E. Harrison II as his counsel of
record. The trial court denied the first set-aside motion, and a notice of ruling was served
on May 24, 2010.
              On June 4, 2010, Powell filed a “Motion to Reconsider Denial of Motion to
Set Aside Dismissal and Entry of Judgment; Alternatively to Set Aside the Dismissal of
the Action and Judgment” (the motion for reconsideration). The motion for
reconsideration included declarations from Harrison, Williams, and Powell, and asserted
the conduct of Williams “[went] beyond that of those factors set forth in C.C.P. §473(b)
and are more appropriately characterized as positive misconduct.” Defendants opposed
the motion for reconsideration.
              At the hearing on July 2, 2010, the trial court denied the motion for
reconsideration on the ground there were no new or different facts or law to support the
motion, the motion was untimely, and the conduct of Williams did not amount to
extrinsic fraud or mistake.


                                            III.
                   Our Prior Opinion in Powell v. County of Orange
              Powell appealed from the “Denial of Motion for Reconsideration/Motion to
Set Aside Dismissal” entered on July 2, 2010. In Powell v. County of Orange (2011) 197
Cal.App.4th 1573 (Powell I), we dismissed the appeal on two grounds. First, we
concluded an order denying a motion for reconsideration is not directly appealable. (Id.
at pp. 1575, 1576.) Second, we concluded a signed order or judgment dismissing the
action had not been entered in the trial court. (Id. at pp. 1575, 1577-1578.) We stated:
“The lack of a written order of dismissal signed by the trial court has two consequences.

                                             4
First, the set aside motion was premature as there is no judgment yet to set aside.
Second, in this matter, there is no final judgment that might serve as a basis for appellate
jurisdiction.” (Id. at p. 1578.)


                                              IV.
                      Postremand Motion to Vacate Invalid Order
              After remand to the trial court, Powell filed a motion to “Vacate Invalid
Order of Dismissal and/or Judgment” (the motion to vacate invalid order). In this
motion, Powell argued that, based on our decision in Powell I, the unsigned minute order
was ineffective as a judgment and, as a consequence, “there is no judgment to be set aside
and any previous motion(s) to set it aside were premature.” With the motion to vacate
invalid order, Powell submitted a declaration from Attorney Harrison, who stated he had
contacted the superior court clerk in an effort to set a hearing to address a trial date.
According to Harrison, the court clerk informed him “no hearing would be set based
upon the conclusion that the matter had been dismissed and the appeal also being
dismissed.”
              Defendants opposed the motion to vacate invalid order on the ground
Powell had “no active, pending case.” They argued, in essence, that dismissal of the
Complaint remained “in full force and effect” following dismissal of Powell’s appeal.
              The trial court denied the motion to vacate invalid order with this
explanation: “On 08/09/11, the Court of Appeal issued its decision finding—in
essence—that the absence of an effective final judgment meant the Court had no
jurisdiction to review the merits of this Court’s various rulings. [¶] At this point there is
no ‘motion’ before this Court that can be ruled upon. Instead, defendant needs to submit
a proposed judgment for this Court’s signature, and that will effectuate appellate review,
if any can be perfected at this late date.”



                                               5
                                             V.

                        Entry of Signed Order of Dismissal and
                                Judgment of Dismissal
              Defendants submitted a proposed order of dismissal. Powell filed written
objections to the proposed order of dismissal, a request for judicial notice, and a
declaration from Harrison.
              On May 1, 2012, the trial court signed the order of dismissal and a separate
judgment of dismissal submitted by Defendants. In the order of dismissal, the court gave
these reasons for issuing the order to show cause regarding dismissal in 2009: “On
September 17, 2009, this Court determined in chambers work that this case was still in
the inventory and that no action had taken place since this Court’s December 2007 ruling
on Defendants’ discovery motions.” The court noted: “A Case Management Conference
(‘CMC’) was scheduled when the case was in Department C28, but that hearing was
taken off calendar and the case was transferred without ever getting onto this
Department’s CMC wheel.”
              The order of dismissal also stated: “On September 29, 2009, this Court
received return of the mailed Order to Show Cause to Plaintiff’s counsel, upon which the
United States Postal Office indicated that the mail was not deliverable to his address of
record. [¶] On October 7, 2009, the Court’s Order to Show Cause proceeded to hearing
with Defense counsel present. Neither Plaintiff [n]or Plaintiff’s counsel attended the
proceedings. Moreover, neither Plaintiff [n]or Plaintiff’s counsel filed any written
response to the Court’s Order to Show Cause. Accordingly, after due consideration of
the matter, the Court ordered the case dismissed for delay in prosecution pursuant to
California Rule of Court 3.1340 and Code of Civil Procedure § 583.410.”
              The order of dismissal and the judgment of dismissal were filed on May 1,
2012. Notice of entry of judgment was served on May 7, 2012.


                                              6
                                             VI.
                     Powell’s Second Motion to Set Aside Dismissal
              In late August 2012, Powell filed a motion to set aside dismissal and entry
of judgment (the second set-aside motion) seeking relief on two grounds. First, the
second set-aside motion sought relief under the automatic relief/attorney fault provision
of section 473(b). Second, the motion sought equitable relief on the ground “[t]he
dismissal resulted solely from the neglect, better characterized as positive misconduct of
Plaintiff’s former counsel.” Submitted with the second set-aside motion were
declarations from Harrison, Powell, and Williams.
              In his declaration, Williams stated: “It was solely as a result of my neglect
that this matter was ordered dismissed by the Court. Mr. Powell played no role in my
neglect of his matter, including but not limited to the failure to respond to discovery
request[s], to oppose the motions to compel or appear at the hearings thereon.” Williams
declared he did not keep Powell informed of the status of the case, did not respond to his
communications, did not forward him the discovery requests, did not appear at the
hearings on the motions to compel, did not inform Powell of the order compelling
responses to that discovery, did not inform him or the trial court of his change of address,
and did not inform him of the dismissal. Williams acknowledged he did not respond to
Powell’s “numerous attempts” to contact him and “neglected Mr. Powell’s inquiries until
after the dismissal of the action.” Williams declared he had drafted the first set-aside
motion but in it “did not set forth all of the true facts underlying my neglect resulting in
the dismissal.”
              Defendants opposed the second set-aside motion, characterizing it as a
motion for reconsideration presenting no new facts or law. They argued Powell was not
entitled to invoke the attorney fault provision of section 473(b) and, due to passage of
time, they would suffer prejudice if the trial court granted relief.

                                               7
              The trial court treated the second set-aside motion as both a motion for
reconsideration and as a motion to set aside a judgment. In an order dated September 28,
2102, the court ruled that, as a motion for reconsideration, the second set-aside motion
was untimely and failed to present new evidence or arguments. The court ruled that, as a
motion to set aside a judgment, the second set-aside motion failed because Powell did not
meet his burden of producing evidence to establish the dismissal was caused by attorney
mistake, inadvertence, or neglect. The court found that mandatory relief was not
available under section 473(b) because Williams’s conduct was not the “‘proximate
cause’ of the ‘error’ in not having a trial court set aside the dismissal.” The court stated:
“Attorney Harrison has taken three bites at the set-aside apple, with no success. In the
whole scheme of things, Attorney Williams’ error in not attending the OSC [(order to
show cause)] pales in comparison to Attorney Harrison’s inability to have that dismissal
set aside. Thus, proximate cause appears to rest more firmly with Attorney Harrison,
who has not opted to fall on any sword.” The court held the automatic set-aside
provision of section 473(b) does not apply to a dismissal of a complaint for delay in
prosecution and Powell failed to establish extrinsic fraud justifying equitable relief.
              The trial court also denied equitable relief because “such relief is limited to
those situations where a party has been effectively deprived of the opportunity to present
his or her claim, or prevented from participating in the proceeding, through no fault of
his/her own.” The court stated: “Where, as here, the dismissal is alleged to be voidable,
plaintiff must allege (1) extrinsic fraud or mistake, (2) a meritorious claim, (3) due
diligence, and (4) minimal prejudice to the opposing side. [Citations.] Nothing of the
sort is offered by plaintiff here.”
              The trial court concluded: “Whether the present motion is deemed a
renewed motion to set aside, or a motion for reconsideration, the motion is so palpably
devoid of merit that no reasonable attorney would in good consci[ence] bring such a



                                              8
motion. The motion is obviously denied with prejudice.” Powell filed a notice of
appeal from the order of dismissal and the order denying the second set-aside motion.


                               APPELLATE JURISDICTION
              Defendants contend Powell’s appeal must be dismissed because the second
set-aside motion was a motion for reconsideration, and an order denying such a motion is
not appealable. In a related argument, Defendants contend Powell may not seek review
of the May 2012 order of dismissal and judgment of dismissal because his notice of
appeal was not timely as to them.
              Defendants are correct that in Powell I, supra, 197 Cal.App.4th at
pages 1575, 1576, we concluded an order denying a motion for reconsideration is not
appealable. The second set-aside motion was not, however, a motion for reconsideration.
In Powell I, supra, 197 Cal.App.4th at page 1578, we stated the lack of a written order
signed by the trial court had two consequences, the first of which was “the set aside
motion was premature as there is no judgment yet to set aside.” (Italics added.) The
clear import of that statement is that upon entry of a proper judgment, Powell could
challenge or seek to set aside the judgment pursuant to section 473(b) or on any other
permissible grounds. Once the signed order of dismissal and the signed judgment of
dismissal were entered, Powell did precisely that. The second set-aside motion was not a
motion to reconsider the prior set-aside motion and motion for reconsideration, which
were premature as no valid judgment had been entered. Instead, it was a valid motion to
set aside the judgment pursuant to section 473(b) and on equitable grounds.
              A motion under section 473(b) must be made within a “reasonable time,” in
no case exceeding six months after the judgment was entered. The signed order of
dismissal and the signed judgment of dismissal were entered on May 1, 2012; Powell
filed the second set-aside motion on August 30, 2012, just shy of four months later.
Defendants do not argue the second set-aside motion was not made within a reasonable

                                             9
time after entry of the signed order of dismissal and the signed judgment of dismissal. In
any case, relief on equitable grounds is available even when relief is no longer available
under section 473(b). (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215,
1228.)
              Defendants are correct that Powell’s notice of appeal was untimely as to the
order of dismissal and the judgment of dismissal. Notice of entry of judgment was served
on May 7, 2012. Under California Rules of Court, rule 8.104(a)(3), Powell had 60 days
from May 7 (July 6), in which to file a notice of appeal from the order of dismissal and
the judgment of dismissal. He did not file his notice of appeal until November 27, 2012.
A valid motion to vacate a judgment will extend the time in which to appeal from the
judgment if the motion is filed and served within the time prescribed to file the notice of
appeal from the judgment. (Cal. Rules of Court, rule 8.108(c); see Starpoint Properties,
LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1108 [“The bottom line is that, in order to
extend the allotted time to appeal, appellants here must have filed their motion to vacate
within the mandatory 60-day period provided by rule 8.104(a)”].)
              The second set-aside motion did not extend the time to appeal from the
order of dismissal. Powell served and filed the second set-aside motion on August 30,
2012, some 55 days after the last day to file the notice of appeal from the order of
dismissal and judgment of dismissal. We therefore lack jurisdiction over his appeal from
“581d dismissal.”
              Powell’s notice of appeal also identified the “Motion to Set Aside
Dismissal,” which we construe as the order denying the second set-aside motion. That
motion was both a statutory motion under section 473(b) and a nonstatutory motion for
equitable relief. An order denying a motion to set aside or vacate a judgment under
section 473 is appealable under section 904.1, subdivision (a)(2). (Generale Bank
Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) Unless an
exception applies, an order denying a nonstatutory motion to vacate a judgment is not

                                             10
appealable. (Carr v. Kamins (2007) 151 Cal.App.4th 929, 933-934; Whelan v. Rallo
(1997) 52 Cal.App.4th 989, 991-992, fn. 3; see Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2013) ¶ 2:174, p. 2-96 (rev. # 1, 2010).) An
appeal may be taken from an order denying a nonstatutory motion to vacate a judgment
when the underlying judgment is void (Carlson v. Eassa (1997) 54 Cal.App.4th 684,
690-691) or where the record made at the time of the judgment did not disclose the
grounds for appeal (In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1043).
Neither exception applies here. Thus, our appellate jurisdiction extends only to Powell’s
challenge to the order denying the second set-aside motion to the extent it was made on
statutory grounds under section 473(b).
              At oral argument, we invited the parties to submit supplemental briefing on
the issue whether we should treat the appeal as a petition for writ of mandate.
Defendants filed a supplemental letter brief strenuously arguing against doing so. We
have considered the arguments presented in that letter brief, but, in the interests of justice
and judicial economy, exercise our discretion to treat the appeal, to the extent it relates to
the nonstatutory motion, as a petition for writ of mandate. (Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 745-747; Connell v. Superior Court (1997) 59
Cal.App.4th 382, 393-394.) The merits of the appeal have been fully briefed, the briefs
and record before us contain in substance all the elements required by the California
Rules of Court for an original mandate proceeding, and failure to consider the merits of
the nonstatutory portion of the second set-aside motion would be manifestly unjust.
(Morehart v. County of Santa Barbara, supra, at pp. 745-747.) Although, as Defendants
argue, Powell did not expressly request relief by writ of mandate, “the case in its present
posture presents unusual circumstances making it appropriate to ascertain from the record
whether there are substantive errors that [we] should, by writ, order the trial court to
correct.” (Id. at p. 746.)



                                              11
                                        DISCUSSION
                                              I.
                                    Standard of Review
              We review an order granting or denying equitable relief from a judgment or
order under the abuse of discretion standard. (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 981; In re Marriage of Grissom (1994) 30 Cal.App.4th 40, 46; In re Marriage of
Mansell (1989) 217 Cal.App.3d 219, 225-226; Bailey v. Roberts (1969) 271 Cal.App.2d
282, 285-286; Shields v. Siegel (1966) 246 Cal.App.2d 334, 337-338.)
              The abuse of discretion standard has been described generally in these
terms: “The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) A trial court
exceeds the bounds of reason when, in light of the evidence and the applicable law, the
court’s decision was not a permissible option. “The abuse of discretion standard . . .
measures whether, given the established evidence, the act of the lower tribunal falls
within the permissible range of options set by the legal criteria. ‘The scope of discretion
always resides in the particular law being applied, i.e., in the “legal principles governing
the subject of [the] action . . . .” Action that transgresses the confines of the applicable
principles of law is outside the scope of discretion and we call such action an “abuse” of
discretion.’” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233
Cal.App.3d 813, 831.)
              In applying the abuse of discretion standard, we determine whether the trial
court’s factual findings are supported by substantial evidence and independently review
its legal conclusions. (County of San Diego v. Gorham, supra, 186 Cal.App.4th at
p. 1230.)




                                              12
                                              II.

                  The Trial Court Erred by Denying Powell Equitable
                                Relief from Dismissal.
              A trial court has inherent equitable power to set aside a judgment or
dismissal on the ground of extrinsic fraud or mistake. (Olivera v. Grace (1942) 19
Cal.2d 570, 576-577; County of San Diego v. Gorham, supra, 186 Cal.App.4th at
p. 1228; Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290.) 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 v. Campbell, supra, 8 Cal.4th
at p. 981.) “[T]he terms ‘fraud’ and ‘mistake’ have been given a broad meaning by the
courts, and tend to encompass almost any set of extrinsic circumstances which deprive a
party of a fair adversary hearing. [Citation.] The term ‘extrinsic’ refers to matters
outside of the issues framed by the pleadings, or the issues adjudicated. [Citation.]”
(Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738 (Aldrich).)
              Extrinsic mistake has been found when the attorney’s positive misconduct
deprives his or her client of a hearing. (Aldrich, supra, 170 Cal.App.3d 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.)
              A client’s redress for inexcusable neglect by counsel is usually an action for
malpractice. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.) In
Carroll v. Abbott Laboratories, Inc., the California Supreme Court recognized an
exception to that rule in those instances in which “‘the attorney’s neglect is of that
extreme degree amounting to positive misconduct, and the person seeking relief is
relatively free from negligence.’” (Ibid.) In that situation, “‘the 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.’. . . [Citations.]” (Ibid.)


                                              13
               In Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 352-356,
the Court of Appeal reversed the trial court’s denial of a motion for equitable relief from
a default judgment where the cross-defendant’s attorney failed to file an answer and
appear at trial. The cross-defendant had contacted his attorney many times, and the
attorney assured him he was defending the case and would take care of the trial. (Id. at
p. 350.) After a substantial judgment was entered against the cross-defendant, his
attorney failed to seek relief from the judgment within the statutory period. (Id. at
pp. 350-352.) The Court of Appeal, holding the trial court should have granted the
cross-defendant equitable relief from the judgment, stated: “Although the law ordinarily
charges the client with the inexcusable neglect of his attorney, and gives him redress
against his counsel [citation], there are exceptional cases in which the client who is
relatively free from personal neglect will be relieved from a default or dismissal
attributable to the inaction or procrastination of his counsel. [Citations.] This is
particularly true where the attorney’s failure to represent the client amounts to positive
misconduct. [Citation.] An attorney’s authority to bind his client does not permit him to
impair or destroy the client’s cause of action or defense. [Citation.]” (Id. at p. 353.)
Relief in that situation is warranted if the client acted with due diligence in seeking relief
after discovery of the attorney’s neglect, and the opposing party will suffer no prejudice
if relief is granted. (Ibid.)
               In Aldrich, supra, 170 Cal.App.3d at pages 731-732, the Court of Appeal
held the trial court did not err in granting a plaintiff relief from dismissal on equitable
grounds because the plaintiff’s lawyer failed to respond to discovery requests, failed to
oppose a motion to dismiss for failure to respond, and was suspended from the practice of
law shortly before the dismissal was granted. The court explained that although
inexcusable neglect is usually imputed to the client, “in a case where the client is
relatively free from negligence, and the attorney’s neglect is of an extreme degree
amounting to positive misconduct, the attorney’s conduct is said to obliterate the

                                              14
existence of the attorney-client relationship.” (Id. at p. 738.) Equitable relief from the
dismissal was warranted, the court concluded, because “the positive misconduct
necessary to absolve a client of responsibility for his attorney’s inexcusable negligence
[was] present.” (Id. at p. 739.)
              In People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584, the
Court of Appeal affirmed an order granting equitable relief from a default judgment
because the respondent’s attorney displayed “a total failure to represent his client” by
failing to return the respondent’s telephone calls and to oppose the default judgment
motion.
              In sum, these cases establish that equitable relief from a judgment or
dismissal based on an attorney’s positive misconduct should be granted when (1) the
attorney’s positive misconduct amounts to abandonment of or total failure to represent
the client; (2) the client is relatively free of fault and acted with due diligence in seeking
relief after discovery of the attorney’s neglect; and (3) the party opposing relief will
suffer no prejudice if relief is granted.
              The declarations submitted in support of the second set-aside motion
established each of these requirements for equitable relief. Williams declared he engaged
in positive misconduct that resulted in his abandonment of Powell. Williams declared he
did not keep Powell informed of the status of the case, did not inform Powell of his
change of address, and did not respond to Powell’s attempts to communicate with him.
Williams did not respond to discovery requests, did not file any opposition to the motions
to compel discovery, and did not appear at the hearing on the motions to compel.
Williams failed to respond to the trial court’s order to show cause regarding dismissal for
failure to prosecute and did not appear at the hearing on the order to show cause.
              Powell acted diligently. He declared he made numerous attempts to contact
Williams by telephone. When Powell was unable to reach Williams, Powell contacted
the person who had referred him to Williams, contacted another person represented by

                                              15
Williams, and even hired a private investigator, all to no avail. Powell declared, “[i]t was
only after Mr. Williams was suspended from the practice of law was I even informed that
my case had been dismissed.” It is arguable that Powell could and should have done
more, but “a client should not be required to act as a ‘hawklike inquisitor’ of his own
counsel, nor perform incessant checking on counsel.” (Aldrich, supra, 170 Cal.App.3d at
p. 740.)
              Upon learning his case had been dismissed, Powell worked diligently with
Williams to file the first set-aside motion and retained Harrison to appear at the hearing
on the motion. Harrison stated in his declaration that “Mr. Williams, while suspended
from the practice of law, drafted and presented the document to [Powell] and only then
informed him that the case had been dismissed almost six months to the day before he
met with him.”
              Finally, Powell established that Defendants would not suffer prejudice if
relief were granted. Attorney Harrison stated in his declaration: “[N]o prejudice will
inure to the Defendants by setting aside the dismissal. [¶] . . . [T]he incident was not only
captured on videotape but the deputies also documented their version of the events in
their police reports as well as during the course of their testimony in the underlying
criminal case. [¶] . . . Consequently, their memories, to the extent they feign memory
loss, are easily refreshed, but more importantly (and accurately) the incident is
memorialized on videotape.” Defendants presented no evidence of prejudice.
              This case is virtually identical to Seacall Development, Ltd. v. Santa
Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 204-208 (Seacall), in which the
Court of Appeal reversed the trial court’s order denying equitable relief from dismissal.
In Seacall, the plaintiff’s attorney failed to prosecute the case and failed to oppose the
order to show cause regarding dismissal for failure to prosecute. (Id. at pp. 203-204,
206.) Although an attorney’s negligence usually is imputed to the client, and therefore
offers no ground for equitable relief, the Court of Appeal explained that “[i]mputation of

                                             16
the attorney’s neglect to the client ceases at the point where ‘abandonment of the client
appears.’” (Id. at pp. 204-205.) Abandonment requires both the “‘total failure on the part
of counsel to represent the client’” and “an absence of fault and due diligence on the part
of the client.” (Id. at p. 208.) The evidence showed that the plaintiff’s attorney “sat on
the case and did nothing to represent [the plaintiff].” (Ibid.) Although the plaintiff had
not contacted the attorney in the two years between filing the action and the dismissal, the
Court of Appeal concluded the plaintiff had been justified under the circumstances in
relying on the attorney. (Id. at p. 206.) A more significant factor was, the court
concluded, the plaintiff’s diligence in retaining new counsel who filed a motion for relief
after learning of the dismissal. (Id. at pp. 206-207.)
              Seacall, as this case, concerned relief from discretionary dismissal. The
Seacall court stated: “We also find it significant this case was dismissed under the
discretionary two-year time period of Code of Civil Procedure section 583.420.
[Citation.] . . . ‘The two-year period is not an arbitrary limit, but simply a general guide to
determine whether “want of prosecution” appears and, if so, whether the power to
dismiss should be used in view . . . of the entire situation.’ [Citation.] Thus the public
policy against delay in prosecution is not as strong in this case as in, for example, a case
dismissed under the mandatory five-year rule (Code Civ. Proc., § 583.310).” (Seacall,
supra, 73 Cal.App.4th at p. 207.) The Seacall court concluded, “[t]he fact the dismissal
was not mandatory but discretionary also weighs in favor of granting relief.” (Seacall,
supra, at p. 208.)
              Likewise in this case, Powell sought relief from a discretionary dismissal
under section 583.410 for delay in prosecution. In light of the applicable law, most
notably the Seacall opinion, and the evidence, the denial of the second set-aside motion
was not a permissible option for the trial court. The court’s statement that Powell
submitted “[n]othing of the sort” to establish the elements required for equitable relief
was simply wrong. Indeed, the facts in support of relief are stronger here than in Seacall.

                                              17
In Seacall, supra, 73 Cal.App.4th at page 206, the Court of Appeal concluded the
plaintiff’s failure to contact counsel during a two-year period was not sufficient ground to
deny relief. In contrast, Powell at least attempted to contact Williams on a regular basis
and even hired a private investigator to try to locate him. In Seacall, the Court of Appeal
concluded the trial court abused its discretion by denying the plaintiff’s motion to vacate
a discretionary dismissal; under similar facts, we do the same.
              Nearly four years have passed since Powell brought the first set-aside
motion. The trial court found that Powell contributed to this delay by treating the
unsigned minute order dismissing the action as a final judgment and pursuing the appeal
in Powell I. Powell should not bear the brunt of responsibility. The dismissal by minute
order was, after all, issued by the trial court in favor of Defendants, who had the most
interest in securing, and could have secured, compliance with section 581d. Even after
we issued an order in Powell I raising the issue whether the minute order was effective as
a judgment, Defendants did not obtain a signed order of dismissal. And, of course, no
lengthy amount of time would have passed if years ago the trial court had granted the
relief that is compelled by the evidence and the law.


                                DISPOSITION AND ORDER
              We treat the appeal from the order denying the nonstatutory portion of the
second set-aside motion as a petition for writ of mandate and grant it. Let a writ of
mandate issue directing the trial court to (1) vacate its order, dated September 28, 2012,
denying the second set-aside motion; (2) enter a new and different order granting the
second set-aside motion and vacating the order of dismissal and judgment of dismissal
entered on May 1, 2012; and (3) enter an order vacating the order to show cause
regarding dismissal for delay in prosecution.
              In this opinion, we have concluded that Attorney Mark H. Williams
committed misconduct. Therefore, pursuant to canon 3D(2) of the California Code of

                                            18
Judicial Ethics and rule 10.1017(a) of the California Rules of Court, we hereby report
Attorney Mark H. Williams, former counsel for petitioner Charles Eric Powell, to the
State Bar of California for misconduct as described in this opinion. The clerk of this
court is directed to send copies of this opinion to the State Bar of California and to Mr.
Williams at his address listed by the State Bar.




                                                   FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




                                             19
