Filed 9/2/16
                          CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                    DIVISION FOUR


CHRISTOPHER MINICK,
        Plaintiff and Respondent,                 A143187

v.                                                (Sonoma County
CITY OF PETALUMA,                                 Super. Ct. No. SCV 251915)
        Defendant and Appellant.


        After the trial court granted summary judgment for the City of Petaluma (the City)
in this personal injury case, plaintiff Christopher Minick (Minick) moved for
discretionary relief from the judgment under Code of Civil Procedure section 473,
subdivision (b),1 on grounds of “mistake, inadvertence, surprise or excusable neglect.”
His attorney, Joshua Watson, submitted a declaration in support of the motion explaining
that, at the time he prepared Minick’s summary judgment opposition papers, he was
suffering from a serious illness for which he was under heavy medication. Although he
was unaware of it at the time, Watson told the court, cognitive impairment caused by a
combination of his illness and his medicated state led him to overlook readily available
evidence. The court granted the requested relief, finding excusable neglect, and the City
now appeals. In deference to the trial court’s broad discretion on this type of motion, we
shall affirm.




        1
        All further references to statutory provisions are to the Code of Civil Procedure
unless otherwise specifically indicated.


                                             1
                                  I.     BACKGROUND
        A.     Minick’s Lawsuit and the Grant of Summary Judgment Against Him
        While riding in the Holstein 100, a non-competitive charity bicycling event held as
a fundraiser for West Marin Senior Services, Minick fell from his bicycle while
descending a hill on Western Avenue in the City. Christopher Erwin, a friend riding
behind Minick, saw him lose control of his bicycle after hitting a large pothole, pitching
him head-first onto the pavement. Following the accident, Minick exhausted his
administrative remedies with the City, and then brought suit against it alleging a single
cause of action for maintaining a dangerous condition of public property under
Government Code section 835. In his lawsuit, Minick was represented by the Dolan Law
Firm. Watson was the associate at that firm with sole day-to-day responsibility for the
case.
        In August of 2013, the City filed a summary judgment motion arguing that
Minick—who testified in deposition that he has no recollection of the accident, and only
remembers waking up in the hospital afterward—had no proof of any dangerous
condition on public property. Watson prepared and filed papers opposing the motion,
attaching some grainy, low-resolution black-and-white photographs of the site where the
accident was alleged to have taken place, including a photo showing Erwin standing in an
unidentified street pointing to somewhere on the pavement; a copy of a police Collision
Report containing a statement from Erwin that he had seen a pothole in the street where
Minick fell; and an expert declaration from an engineer, Dale Dunlap, who offered the
opinion that a defect in the street at the scene of the crash caused him to fall.
        The City’s motion was set for hearing on January 10, 2014. The day before the
hearing the court issued a tentative ruling denying the motion. When the parties appeared
for argument the next day, Watson appeared, but showed signs of physical distress during
argument and was taken to a hospital by ambulance. The court continued the hearing to
March 12, 2014. The day before the continued hearing, the court issued another tentative
ruling, again denying the City’s summary judgment motion, but after hearing argument




                                               2
and taking the matter under submission for several weeks, eventually reversed its
tentative ruling and granted the motion.
        Referring at one point to Watson’s arguments as “ludicrous,” the court sustained
the City’s hearsay and lack of foundation objections to the accident site photographs;
pointed out that because of the poor quality of the images, little could be gleaned from
them in any event, other than that there may have been some minor cracking in the street;
and went on to sustain lack of foundation and speculation objections to Dunlap’s opinion,
since he had no direct knowledge of the site and relied only on the sketchy information
Minick presented in the form of the photographs and the police report. Watson seemed to
recognize that he failed to provide sufficient foundational evidence for various
documents attached as exhibits to his opposition papers, stating in an accompanying
declaration that he intended to take the depositions of a custodian of records, but
adding—as if an attempt to obtain evidence could substitute for its absence—that the
depositions had been continued at the City’s request, without any explanation of whether
he moved to compel, and if not, why not.
        In light of the many deficiencies in Minick’s opposition showing, the court agreed
with the City that Minick had failed to present admissible evidence of any dangerous
condition of public property, and issued an order granting summary judgment on May 13,
2014.
        B.    Minick’s Motion for Discretionary Relief Under Section 473,
              Subdivision (b)

        On June 19, 2014, Minick filed a motion for discretionary relief from the
judgment under section 473, subdivision (b), supported by a declaration from Watson.
Watson explained that he had been suffering from serious pulmonary and sleep disorders
throughout 2013, and that his symptoms gradually worsened as the year progressed. He
sought medical treatment and was put on a regimen of 12 different medications. In the
course of treatment, he went to the emergency room four times, twice by ambulance; he
consulted with five medical specialists in dozens of appointments; and he underwent
radiological studies, lab studies, ultrasound studies, and sleep studies. Although



                                             3
Watson’s underlying pulmonary condition gradually improved, he claimed to have
suffered side effects from the medications, including painful spasms, episodes of
disorientation, and periods of uncharacteristically strong responses to stressors.
       From August through December 2013—a time period coinciding with his efforts
to prepare summary judgment opposition papers for Minick—Watson reported that the
combination of symptoms from illness and the side-effects from his medications were at
their peak. Although at the time he felt he was adequately “soldiering on” despite the
medical crisis he was in, Watson declared that, looking back on that period of time, he
could see that his judgment was clouded, his thought processes were not as clear and
dispassionately critical as was normal for him, and he suffered from gaps in his memory.
Watson explained that he was an experienced trial lawyer, and to that point had a record
of considerable success in law practice, but that in 2013, as a result of his medical
condition, his ability to perform as a lawyer fell, and he made decisions in this case “that
were not in keeping with [his] ordinary practice of law.”
       “These shortcomings were not born of any lack of effort, complacency, disregard,
or lack of caring about my client or the Court,” Watson declared. Rather, he told the
court, they were a result of his “serious illness and the side effects of [the] prescribed
medications.” Moreover, because his judgment was clouded and his thought processes
were impaired, and because he had no previous experience with such symptoms, Watson
did not realize he was cognitively impaired and thus made no effort to tell colleagues or
clients about his condition. Because of his impairment, Watson stated, he did not realize
he needed admissible evidence to support the opposition. Instead, he said, he
inexplicably thought that, because an expert can rely on hearsay, no foundation was
needed for the facts on which the expert’s opinion was based.
       In further support of Minick’s section 473 motion, Watson submitted declarations
that provided the necessary foundation for Dunlap’s opinion, and, independently of that
opinion, enough evidence to show the City maintained a dangerous condition on a public
street that caused Minick’s accident. A declaration from Erwin established that he had
gone with Minick on numerous rides, and that Minick was an experienced and safe rider.



                                              4
Erwin stated that he rode with Minick during the event on August 20, 2011. Toward the
end of the ride, he said he was behind Minick. Immediately before and at the moment of
the accident, Minick was riding at a safe speed and in a safe manner, Erwin said.
According to Erwin, Minick did not suddenly brake or do anything to destabilize the
bicycle, but his bicycle suddenly stopped, with the front wheel twisting sideways,
catapulting him into the street. It was clear to Erwin that Minick’s bicycle encountered
something in the street that caused the front wheel to twist and throw him forward.
Erwin could see that Minick suffered serious injuries, including to his head and shoulder,
and had to be taken to the hospital by ambulance. After Minick was taken to the hospital,
Erwin looked at the street where the accident occurred. He saw “many deviations in its
surface, including cracks, holes, abrupt vertical rises, and bumps.”
       Erwin also confirmed that the photographs attached to his declaration accurately
depicted the pavement at the accident site on the date of Minick’s injury. The deviations
in the street surface were not marked and a rider could not see their severity until coming
upon them. They were dangerous to a road bicycle, like the one Minick was riding,
because they could grab and twist the front wheel, popping the bicycle into the air and
causing the rider to lose control. It appeared to Erwin that this uneven pavement was part
of a trench that had been dug and patched. When he later returned to the site, as depicted
in a photograph with him pointing at the street where Minick fell, the surface had been
repaved after the accident. Thus, the photograph, which the court stated showed only a
trivial defect, was not designed to show the dangerous condition, but only its location.
       In addition to the Erwin declaration, Minick submitted a declaration from Scott
Andrews, a resident of the area near Minick’s accident. Andrews, misidentified as Scott
Takami in the discovery responses Watson submitted in opposition to the City’s summary
judgment motion, said he took the photographs that were originally supplied to the court
with Minick’s summary judgment opposition. He explained the circumstances of his
having taken the photographs, identified them as depictions of the location in the street
where Minick’s accident took place, and confirmed that they “accurately depict the




                                             5
condition of the pavement on Western Avenue, to the west of the Intersection of Hill
Street and Western Avenue” in the City “where Mr. Minick was found injured.”
       Relying on the new foundational information from Erwin and Andrews, a
supplemental declaration from Dunlap offered additional support for his expert opinion.
Based on a review of the Erwin and Andrews declarations and various additional better,
quality photographs authenticated in those declarations, Dunlap identified “a substantial
series of defects at the same point identified by Mr. Erwin in his declaration.” He
concluded that Minick struck a depression in the street where two lines of trenching
visible in the photographs intersected. He found the defect identified in the Erwin
declaration and photographs consistent with the measurements in the traffic collision
report. Further, based on these materials, he opined that the accident site was “in a state
of significant disrepair,” which posed hazards from “sudden bumps, dips, and ledges,”
including potholes, that could cause a bicycle rider to lose control.
       Dunlap concluded that the condition of the street constituted a dangerous
condition. “In my opinion,” Dunlap declared, “Mr. Minick’s bicycle tire most likely lost
friction as it passed over the bumpy road approaching the intersection of the light
trenching and main trench line discussed above, then struck the lip of the lighter trench
line, such that the bicycle stopped and Mr. Minick flew off his bicycle and was injured. I
may defer to an accident reconstructionist on this point, but within the scope of my
expertise, this mechanism of the incident is consistent with Mr. Erwin’s declaration, and
is the type of danger that . . . [applicable road building and maintenance] standards . . .
seek to guard against.”
       The court also thought the opposition was so poorly written that it wondered if
something was seriously amiss. The papers were “strikingly not well written and,
frankly, left the Court wondering—to be really honest, . . . what was going on, because it
didn’t seem to me it was of the quality that any firm, whether it be plaintiff or defense,
would provide in a—you know, in response to a well written summary judgment
motion.” “The issue that concerns the Court is this, and I’ll be quite frank about it, is that
when I sat down and spent the time that I spent to re-review the evidence and re-review



                                              6
the objections and to go through it piece by piece, because it was such a bundle of
misstatements and misdirection from the side of the plaintiff in this case, and I sat down
and tried to put it all together and do the best that I could with what I had, and when I
made that ruling, I did make that [summary judgment] ruling with some degree of
concern about it, because it was astounding to me . . . how it was that it was put together
and provided to the Court.” The court also stated that if it had had the evidence that
Minick submitted with the motion for relief from judgment—namely, the Erwin,
Andrews, and supplemental Dunlap declarations—it would have denied the summary
judgment motion.
       Responding directly to the City’s contention that Minick still had not submitted
evidence of a dangerous condition, the court stated: “If the Court were to consider today
the new matter, . . . there would at least be sufficient evidence for purposes of discussion
about what the dangerous condition was. [¶] I mean, you do have someone . . . who was
riding his bicycle at the same time as plaintiff and who stopped when plaintiff tumbled
and was injured and then saw the area where he fell and identified in his new
declaration—again, not his original one, but the new declaration—where that occurred.
And there are photographs, color photographs of greater clarity showing conditions in the
roadway that at least arguably could constitute a dangerous condition of public property
under 835 of the Government Code. [¶] I think there’s more for purposes of discussion
now than there was, substantially more now for the purposes of discussion than was
presented previously to the Court, now, again, even if evidentiary objections had not been
sustained at the initial filing [of] the motions.”
       At the conclusion of the hearing, the court announced its intention to grant
discretionary relief under section 473, subdivision (b), explaining as follows: “The Court
finds that Mr. Watson . . . was suffering from a medical state that he was generally
unaware of and there was some neglect that was involved in that. To the extent that he
may or may not have been able to address his issues during the pendency of this matter is
perhaps not expressly determined, but the Court does understand that he had a medical
condition, that the medication condition affected his ability to exercise proper judgment,



                                               7
that he provided pleadings, filed pleadings and acted in such a manner that is contrary to
his own practice, that the inadvertence and neglect were the result of a medical condition
that he later became aware of. So that is the basis for the Court’s ruling . . . .” An order
granting section 473 relief from judgment issued August 7, 2014, and the City timely
sought review of that order.2
                                   II.    DISCUSSION

       A.         Standard of Review
       Section 473 is a remedial statute to be “applied liberally” in favor of relief if the
opposing party will not suffer prejudice. (Elston v. City of Turlock (1985) 38 Cal.3d 227,
233 (Elston); see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th
249, 256 (Zamora) [“ ‘the provisions of section 473 of the Code of Civil Procedure are
to be liberally construed’ ”].) “[B]ecause the law strongly favors trial and disposition on
the merits, any doubts in applying section 473 must be resolved in favor of the party
seeking relief from default.” (Elston, supra, 38 Cal.3d at p. 233; Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 980, quoting this language in Elston with approval.) “Unless
inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Elston,
supra, 38 Cal.3d at p. 235.)
       A trial court’s ruling granting discretionary relief under section 473,
subdivision (b) “ ‘shall not be disturbed on appeal absent a clear showing of abuse.’ ”
(Zamora, supra, 28 Cal.4th at p. 257, quoting State Farm Fire & Casualty Co. v. Pietak
(2001) 90 Cal.App.4th 600, 610 (State Farm).) The scope of the trial court’s discretion
under section 473 is broad (Elston, supra, 38 Cal.3d at p. 233) and its factual findings in
the exercise of that discretion are entitled to deference (H.D. Arnaiz, Ltd. v. County of
San Joaquin (2002) 96 Cal.App.4th 1357, 1368; see also In re Marriage of Connolly
(1979) 23 Cal.3d 590, 598 [“when two or more inferences can reasonably be deduced
from the facts, a reviewing court lacks power to substitute its deductions for those of the
trial court”]).

       2
        See section 904.1, subdivision (a)(2) (an order following a judgment that is
appealable under section 904.1, subdivision (a)(1), is itself appealable).


                                              8
          On review, appellate courts have repeatedly noted that an abuse of discretion may
be found only if a grant of relief “exceed[s] the bounds of reason.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478 (Shamblin); accord, Sanchez v. City of Los Angeles (2003) 109
Cal.App.4th 1262, 1271.) Given the usual presumption of correctness accorded trial
court rulings on appeal, the party attacking a trial court’s grant of relief—here the City—
bears the burden of demonstrating error. (State Farm, supra, 90 Cal.App.4th at p. 610,
citing Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) By the same token, the
affidavits presented by the party for whom relief was granted—here Minick—establish
“not only the facts stated therein but also all facts which reasonably may be inferred
therefrom . . . .” ’ ” (Zamora, supra, 28 Cal.4th at p. 258.) Moreover, the trial court may
rely on its own review of the record in determining the existence of excusable neglect.
(In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 466.)
          Any exercise of discretion must rest on correct legal premises, of course, and in
that respect our review is de novo. “A trial court abuses its discretion when it applies the
wrong legal standards applicable to the issue at hand.” (Paterno v. State of California
(1999) 74 Cal.App.4th 68, 85.) “ ‘Discretion is compatible only with decisions
“controlled by sound principles of law, . . . free from partiality, not swayed by sympathy
or warped by prejudice. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968,
977.) “ ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and
guided by legal principles and policies appropriate to the particular matter at issue.’ ”
(Ibid.)
          B.     Applicable Principles Under the Discretionary Relief Portion of
                 Section 473, Subdivision (b)

          Section 473, subdivision (b), provides, in pertinent part: “The 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. . . . No affidavit or declaration
of merits shall be required of the moving party. Notwithstanding any other requirements
of this section, the court shall, whenever an application for relief is made no more than



                                                9
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.”
       The statute includes a discretionary provision, which applies permissively, and a
mandatory provision, which applies as of right. Although this bifurcation is not
demarcated in any internal subtitling, it is plainly evident in the textual structure of the
statute. Section 473, subdivision (b), begins with broad language authorizing relief from
a “judgment, dismissal, order, or other proceeding” for “mistake, inadvertence, surprise,
or excusable neglect,” and then, in narrower proviso language applicable to a “default,”
“default judgment” or “dismissal,” requires relief upon the filing of an “attorney’s sworn
affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” The
mandatory relief provision fits into the broader language of the statute as a special case
tucked within it. “The provision of section 473 which mandates relief from a judgment
of dismissal or default when the motion is based on an attorney’s affidavit of fault does
not mandate relief from other judgments. In all other cases, relief is discretionary.
[Citation.] . . . [¶] Relief can only be granted under the mandatory provision in section
473, subdivision (b), if relief could have been granted under the discretionary provision.”
(Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681 (Garcia)).3
       This case arises solely under the discretionary relief provision. To obtain
discretionary relief for attorney error under section 473, subdivision (b), counsel’s
neglect must be excusable. (Zamora, supra, 28 Cal.4th at p. 258.) Because attorneys

       3
        See English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 138–
142 (English) (parsing the statutory history and case law interpretation of the mandatory
“attorney fault” provision in section 473, subdivision (b), which was added by
amendment in 1988 as a narrow exception to the broader discretionary relief provision,
which in turn has been part of the statute since its enactment in 1851).


                                              10
as members of a learned profession are held to a standard of conduct befitting those with
specialized training and skill, and because as a general matter clients are bound by the
judgments and decisions of their chosen counsel, the excusability standard under section
473 is often difficult to meet where a client seeks relief for the errors or omissions of his
or her attorney. That is because “[i]n determining whether [an] attorney’s mistake or
inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person
under the same or similar circumstances” might have made the same error.’ [Citation.]
. . . [T]he discretionary relief provision of section 473 only permits relief from attorney
error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ ” (Garcia,
supra, 58 Cal.App.4th at p. 682.) ‘Conduct falling below the professional standard of
care, such as failure to timely object or to properly advance an argument, is not therefore
excusable. . . . .’ (Ibid.)” (Zamora, supra, 28 Cal.4th at p. 258.)
       Numerous cases have applied this principle in the context of failed attempts to
defend against summary judgment—a phase of civil litigation that is among the most
rigorous and exacting prior to trial—and in none of these cases was attorney error found
to be excusable. (See Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106
Cal.App.4th 1, 17 [“Section 473 cannot be used to remedy attorney mistakes, such as the
failure to provide sufficient evidence in opposition to a summary judgment motion.
[Citation.] . . . Counsel’s failure to understand the type of response required or to
anticipate which arguments would be found persuasive does not warrant relief under
section 473.”]; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350,
1354–1355 [failure to include a request for a continuance pursuant to section 437c,
subd. (h) in opposition to summary judgment does not constitute excusable neglect];
Martin v. Johnson (1979) 88 Cal.App.3d 595, 606–607 [no abuse of discretion in
refusing to vacate summary judgment due to attorney’s error in submitting declarations
not within the personal knowledge of the declarant]; cf. Generale Bank Nederland v. Eyes
of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399 [failure to lay proper foundation
for admission of evidence at prove-up hearing on third party claim not excusable neglect




                                              11
warranting mandatory relief from judgment based on attorney’s affidavit of fault under
section 473].)
       Garcia, supra, 58 Cal.App.4th 674, decided by our colleagues in Division Two of
this district, is an especially noteworthy summary judgment case where discretionary
relief under section 473 for attorney error was denied, since the California Supreme Court
relied on it and quoted from it in Zamora. (See Zamora, supra, 28 Cal.4th at
pp. 257-258.) The summary judgment motion in Garcia turned on the scope and
meaning of a settlement agreement. The trial court initially granted summary judgment
for defendant Hejmadi based on the plain language of the agreement, but later granted a
motion to vacate under section 473, subdivision (b). (Garcia, supra, at pp. 678–680.) In
support of the section 473 motion, plaintiff Garcia submitted late supplemental
declarations attesting to oral communications that allegedly raised triable issues
concerning the parties’ mutual intent when the agreement was signed. (Ibid.) Garcia’s
counsel admitted his failure to submit these declarations earlier was a mistake, but
explained his tardiness on grounds of “inadvertence and time pressure” in his law
practice. (Id. at p. 679.) That excuse failed on appeal.
       Reversing the trial court’s grant of section 473 relief, the panel in Garcia
explained: “The record describes the tardy presentation of an alternative argument based
upon facts and law at all times known to Garcia’s counsel . . . . The ‘inadvertence’
asserted by Garcia’s counsel is no more than late recognition of inadequate briefing and
failure to cite more specifically to a paragraph in a declaration. . . . [¶] Garcia’s
presumption that consideration of the late-filed papers . . . would have produced a
different result begs the question. The issue is not whether the original opposition was
insufficient to prevail, but rather whether the reason advanced for its insufficiency was
‘excusable’ within the meaning of section 473. The ‘reasonably prudent person
standard’ . . . gives an attorney the benefit of such relief only where the mistake is one
which might ordinarily be made by a person with no special training or skill.” (Garcia,
supra, 58 Cal.App.4th at pp. 683–684.) Distraction due to the “press of business” was
not such a mistake, the court held. “[T]he stress admittedly attending modern legal



                                              12
practice” does not “afford[] an acceptable excuse for neglect within the meaning of the
Code of Civil Procedure.” (Id. at p. 684.)4
       C.     Cognitive Incapacity as a Ground for Relief
       Relying heavily on Garcia, the City contends Watson was simply trying to secure
a “do over” when he realized upon reflection that his summary judgment opposition
papers might have been stronger. According to the City, this is a case of simple
professional negligence. On one reading of the record, we might agree, but that is not the
reading the trial court adopted. While the City frames the court’s ruling as having been
based on Watson’s “tactical decisions and conduct as an attorney,” that characterization
of the issue here does not comport with the court’s findings. The court specifically found
the relevant neglect was Watson’s failure to appreciate his own impairment, which was a
mistake anyone could have made, not a failure of legal skill. Watson’s cognitive
impairment, to be sure, certainly caused his feeble lawyering—there was a specific
finding on that point as well—but professional incompetence, per se, was not the neglect
the court found to be excusable.
       In resolving Minick’s motion, the court was faced with two competing versions of
the facts. Minick argued, on the one hand, that the best explanation of the situation was
cognitive incapacity, not professional dereliction. The City argued, on the other hand,
that Watson’s opposition papers, despite their defects, could be considered at least
minimally competent. Having seen Watson in physical distress at one point in open court
and having reviewed his work product, the court seems to have accepted Minick’s point

       4
         After explaining that ordinary professional neglect cannot be recognized as
excusable, the court acknowledged an exception for circumstances “where the attorney’s
neglect, although inexcusable, was so extreme as to constitute misconduct effectively
ending the attorney-client relationship. ‘Abandonment’ may afford a basis for relief, at
least where the client is relatively free of fault, but performance which is merely
inadequate will not. . . . For the exception to apply, the attorney's misconduct must be
sufficiently gross to effectively abrogate the attorney-client relationship, thereby leaving
the client essentially unrepresented at a critical juncture in the litigation.” (Garcia, supra,
58 Cal.App.4th at pp. 682–683; see Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d
892, 898; Daley v. Butte County (1964) 227 Cal.App.2d 380, 391.) Minick has not
argued the client abandonment exception, in the trial court or on appeal.


                                              13
of view. Because Watson’s opposition papers were such an unintelligible mess, the court
explained at the hearing on Minick’s section 473 motion that it had granted summary
judgment despite harboring reservations that something was amiss. Watson’s declaration
apparently provided a credible explanation, and the court accepted it. Under these
circumstances, we cannot say the court’s exercise of discretion under section 473
“exceeded the bounds of reason.” (Shamblin, supra, 44 Cal.3d at p. 478.)
       If Watson’s claim of cognitive incapacity is enough to warrant relief under section
473, subdivision (b), the City argues, where is the stopping point? Whenever an attorney
omits key authority, overlooks readily available evidence, or fails to object, how are
courts to decide whether the error resulted from “[not taking] a particular medication, or
. . . a poor night’s sleep the night before, or . . . a [distracting] personal matter . . . ?
Which excuse would be sufficient and which would not? There would be no finality to
motion practice in California . . . . [¶] Summary judgments would not result in
judgments but mere suggestions to the losing party of how the evidence could be better
presented, with each case to be re-opened upon an attorney’s showing that he could have
done better.” We view this set of concerns as overdrawn. Suffice it to say we are
confident that trial courts, in their application of section 473, can distinguish between
flimsy claims of illness or distraction and genuine medical distress that is so severe it
impedes the lawyer’s ability to warn his client or seek assistance from colleagues.

       D.      The Argument That Discretionary Relief Under Section 473,
               Subdivision (b), Is Limited to Defaults or Default-Equivalent
               Conduct

       The City never seriously questions the truth of Watson’s explanation that a
combination of serious illness and heavy medication rendered him incapable of carrying
out his duties as a lawyer. Instead, it contends Minick’s declaration of his own incapacity
is insufficient to warrant relief under section 473 as a matter of law. The main thrust of
the City’s argument is that absent an actual default—here, for example, failure to file any
summary judgment opposition at all (see e.g. Lynch v. Spilman (1967) 67 Cal.2d 251,
258 [affirming order vacating summary judgment where attorneys failed to appear at




                                                14
hearing or file opposition papers])—discretionary relief under section 473, subdivision
(b), is unavailable. Attempted but ultimately unsuccessful advocacy can never constitute
excusable neglect, the City argues, for if the rule were otherwise, requests for
discretionary section 473 relief based on attorney error would require courts to undertake
open-ended evaluation of deficient lawyering performance, miring them, inevitably, in
questions of legal strategy and judgment.
       For this argument, the City relies on Garcia. Because that case involved not “a
default but rather a motion lost, on its merits, after opposition was filed,” the Garcia
court viewed section 473 as inapplicable. (Garcia, supra, 58 Cal.App.4th at p. 683.) The
court arrived at this conclusion based on cases limiting the applicability of the mandatory
portion of section 473, subdivision (b) to defaults and default-equivalent dismissals.
(Ibid.; accord, Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare
System (1997) 57 Cal.App.4th 1078, 1082 (Bernasconi); see also Peltier v. McCloud
River R.R. Co. (1995) 34 Cal.App.4th 1809, 1817.) Without that limitation, these cases
reason, the mandatory dismissal portion of section 473 conflicts with the statutes
authorizing discretionary dismissal for dilatory prosecution, since a party who suffers
such a default can freely nullify the dismissal—by right— through the simple expedient
of filing an attorney affidavit of fault. (Bernasconi, supra, 57 Cal.App.4th at pp. 1081–
1082 [applying the mandatory provision of § 473, subd. (b), literally, to any dismissal,
“would effectively abrogate the discretionary dismissal statutes, since few if any
dismissals under those statutes would ever be final”].)5
       The Garcia court transplanted this rationale to the discretionary portion of section
473, subdivision (b), explaining that “[w]e find this reasoning equally serviceable here,
where there was no complete failure to oppose, but rather an opposition which was,
though apparently timely and procedurally adequate, inadequate in substance.” (Garcia,

       5
        These cases are in line with other appellate opinions adopting narrow
constructions of the mandatory attorney fault provision of section 473, subdivision (b), to
prevented it “ ‘from being used indiscriminately by plaintiffs’ attorneys as a “perfect
escape hatch” [citation] to undo dismissals of civil cases.’ ” (English, supra, 94
Cal.App.4th at p. 141, quoting Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.)



                                             15
supra, 58 Cal.App.4th at p. 683.) Citing this language from Garcia, the City would have
us limit the availability of discretionary relief for attorney error under section 473,
subdivision (b), to defaults and default-equivalent conduct. Nothing in Zamora or in the
text of section 473 compels such a narrow interpretation of the statute. We prefer the
plain language reading of section 473, subdivision (b), applied recently by Division Two
of the Second District Court of Appeal in Martin Potts & Associates, Inc. v. Corsair, LLC
(2016) 244 Cal.App.4th 432 (Corsair), which rejected the idea that an identical
construction must be placed on the mandatory and discretionary provisions of section
473. In holding that it is unnecessary for an attorney to set forth reasons for his claimed
“mistake, inadvertence, surprise, or neglect” in order to qualify for mandatory relief
under section 473, the panel in Corsair explained that, because “the statutory language
creating the mandatory and discretionary relief provisions of section 473, subdivision (b)
is significantly different,” these two parts of the statute need not be read in pari materia.
(Corsair, supra, at p. 440.)6
       By its terms, the discretionary relief portion of section 473, subdivision (b) is not
limited to defaults and default-equivalent conduct, and we see no reason to require such a
limitation by construction. The statute provides, “The 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.” The only limiting language comes later, in

       6
         See also English, supra, 94 Cal.App.4th at page 137 (“By carefully
differentiating between the scope of the discretionary provision of section 473(b) (which
applies to ‘a judgment, dismissal, order, or other proceeding’) and the scope of the
mandatory provision (which applies to a ‘default’ or a ‘default judgment or dismissal’),
the Legislature chose to limit the circumstances in which a court must grant relief based
on an attorney’s mistake, inadvertence, surprise, or neglect.”), italics added; id. at
page 149 (Despite the limited construction placed on the mandatory relief provision of
the statute, “[i]n the appropriate circumstances . . . relief from a summary judgment may
be available to either a plaintiff or a defendant under the discretionary provision of
section 473(b). [Citation.] This is so because discretionary relief under the statute is not
limited to defaults, default judgments, and dismissals, but is available from any
judgment.”).



                                              16
the narrower mandatory relief provision. Although we agree that the discretionary
provision of section 473, subdivision (b), should not be applied so expansively that it
provides a guaranteed “avenue for attorneys to escape the consequences of their
professional shortcomings by the filing of a simple motion” (Garcia, supra, 58
Cal.App.4th at p. 685), where, as here, the court finds a wholesale disintegration of the
attorney’s professional capacity because of a medical crisis, the availability of relief for
excusable neglect is within the court’s sound discretion.
       E.     Transit Ads and the Sufficiency of Minick’s Showing of His
              Own Incapacity

       In addition to Garcia, the City cites Transit Ads, Inc. v. Tanner Motor Livery, Ltd.
(1969) 270 Cal.App.2d 275 (Transit Ads), a case in which an attorney’s illness was
deemed insufficient to warrant relief under section 473. In Transit Ads, the trial court
entered a default judgment against the defendant. (Id. at p. 278.) The defendant’s
attorney then sought relief on the ground that he had been ill, asserting that medication he
took as part of a weight loss program affected his general mental and physical condition
such that he was absent from his office for long periods of time and was unable to
conduct his law practice properly. Although the attorney engaged a colleague to prepare
and file an answer, he did not keep his appointments with the assisting colleague and he
did not communicate the urgent need to prepare and file an answer. (Id. at p. 286.)
       The Court of Appeal agreed that “[i]llness of counsel which actually disables him
from timely compliance with the statutory rules of procedure constitutes excusable
neglect.” (Transit Ads, supra, 270 Cal.App.2d at p. 280.) But the court went on to
find the neglect at issue in that case was inexcusable because the attorney was aware of
his medical condition yet failed to take the steps a reasonably prudent person would have
taken. Despite being aware that his medical difficulties were hindering his practice,
counsel made no effort to seek assistance from colleagues or to contact his client about
the possibility of retaining someone else. (Id. at p. 287.) Thus, the court concluded
“ [t]here is no showing that disabling illness, and not inexcusable neglect, was the real
cause for the default.” (Id. at pp. 287–288.) Transit Ads is a default case that predates



                                             17
the enactment of the mandatory provision of section 473, subdivision (b) (see fn. 3, ante),
and thus we suspect it would have been decided differently today, but more importantly,
here there was a specific finding that Watson’s impaired condition caused the fatal
deficiencies in Minick’s summary judgment opposition. Unlike the dieting attorney in
Transit Ads, moreover, Watson was found to have been unaware of his own impairment.
       Even if an attorney’s illness can supply legal grounds for a finding of excusable
neglect in some circumstances, the City argues, Watson “cannot attest to whether his
medical condition caused him to suffer clouded judgment or other mental deficits”
because his claim of cognitive disability constitutes improper lay opinion. (See Evid.
Code, § 800, subd. (a) [lay opinion testimony must be rationally based upon the
perception of the witness].) With that we disagree. Watson had knowledge of his own
physical and mental condition because he personally experienced the symptoms he
reported. (See, e.g., People v. Lewis (2001) 26 Cal.4th 334, 356 [to testify, a lay witness
must have personal knowledge, which is “ ‘a present recollection of an impression
derived from the exercise of the witness’ own senses’ ”].) Because that knowledge
provided a foundation for his testimony (Evid. Code, §§ 403, subd. (a)(2), 702, subd.
(a)), Watson could attest to his own medical condition as a fact known to himself. (See,
e.g., Behr v. Redmond (2011) 193 Cal.App.4th 517, 528 [“lay witnesses are generally
competent to testify as to their own knowledge of their diseases, injuries, or physical
condition”]; Frederick v. Federal Life Ins. Co. (1936) 13 Cal.App.2d 585, 590 [“ ‘a
witness may testify whether he has had a particular disease as a matter of fact known to
himself, and not as a matter of opinion’ ”].)
       Cases decided under section 473 are in accord. 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. (See,
e.g., Contreras v. Blue Cross of California (1988) 199 Cal.App.3d 945, 951 [trial court
did not abuse its discretion in finding that attorney’s failure to file timely amended
complaint was excusable where she had fractured her wrist and elbow]; Robinson v.
Varela (1977) 67 Cal.App.3d 611, 616 [trial court did not abuse its discretion in



                                             18
finding that attorney’s failure to file a timely answer was excusable in part because
attorney was suffering from an unspecified illness]; Arnke v. Lazzari Fuel Co. (1962) 202
Cal.App.2d 278, 281–282 [counsel’s declaration that he failed to file a timely answer
because he had an unspecified illness and had been engaged in negotiations to settle the
dispute constituted sufficient evidence of excusable neglect].) The City cites no contrary
authority under section 473, but instead relies on miscellaneous state and federal
decisions taken from other contexts for the general proposition that, in the face of a
defense expert’s declaration that the plaintiff does not suffer from a particular disease, a
plaintiff, to survive a summary judgment, must submit a declaration from his own
medical expert. Procedurally, that is not the posture of this case.
       F.     Minick’s Diligence in Filing for Section 473 Relief and Prejudice to
              the City
       In reply, the City advances two new arguments. It contends, first, that Minick failed
to exercise diligence in bringing his section 473 motion “within a reasonable time” (see Huh
v. Wang (2007) 158 Cal.App.4th 1406, 1420 [“[A] threshold requirement for relief is the
moving party’s diligence. . . . As the statute itself provides, application for relief ‘shall be
made within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.”], citation omitted, italics in original), and
second, that the trial court failed to give proper weight to prejudice caused to the City.
(See Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 980 [“In weighing a motion for
relief under section 473 of the Code of Civil Procedure the trial judge could properly
consider as a factor favoring relief the absence of any prejudice to the opposing party as
the result of its order.”].) Ordinarily, we would deem arguments made for the first time
in reply to have been forfeited, but since Minick addresses both issues in his responding
brief, unprompted, we briefly address each one.
       In granting relief from judgment, the trial court implicitly found that Minick filed
his motion “within a reasonable time.” We review that implied finding for abuse of
discretion. (See County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337,
1347 [trial court’s implied finding that the moving party was diligent is reviewed for




                                              19
abuse of discretion].) What constitutes “ ‘a reasonable time in any case depends upon
the circumstances of that particular case’ ” (Martin v. Taylor (1968) 267 Cal.App.2d 112,
114) and is a question of fact for the trial court (Younessi v. Woolf (2016) 244
Cal.App.4th 1137, 1145). Here, the court entered judgment on May 13, 2014, and notice
of entry of judgment was served by mail on May 15. The date of entry of judgment was
the point in time at which a need for section 473 relief arose (see Huh v. Wang, supra,
158 Cal.App.4th at p. 1421 [the “critical triggering event for seeking relief from the
judgment was notice of its entry”], italics omitted), and Minick filed his motion a little
over five weeks after that date, on June 19.
       Numerous courts have found no abuse of discretion in granting relief where the
section 473 motions at issue were filed seven to 10 weeks after entry of judgment. (See,
e.g., Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [10-week delay]; Hallett v.
Slaughter (1943) 22 Cal.2d 552, 554, 557 [seven-week delay]; Outdoor Imports, Inc. v.
Stanoff (1970) 7 Cal.App.3d 518, 523–524 [nine-week delay].) A delay is unreasonable
as a matter of law only when it exceeds three months and there is no evidence to explain
the delay. (See Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 532; see also Stafford
v. Mach (1998) 64 Cal.App.4th 1174, 1184 [stating that the “three-month unofficial
‘standard’ ” established in Benjamin “remains true today”].) By any reckoning, given this
precedent, Minick met the standard of acting “within a reasonable time.”
       Finally, as to the issue of prejudice, the City claims Minick, having seen how the
court analyzed its summary judgment motion, in effect obtained an advisory opinion on
the hazardous condition issue under Government Code section 835, giving him an unfair
tactical advantage in further litigation with the City on that issue. We have no doubt the
grant of relief here improved Minick’s position in his effort to defeat the City’s motion,
but that kind of “prejudice” is inherent in any grant of section 473 relief. Coming at the
prejudice issue from another angle, the City argues it is bound to incur unfair financial
burden due to the need to re-litigate issues presented in its summary judgment motion.
On this point, the City once again puts greater stock in the finality of an interim order
than is warranted. Trial courts always have discretion to revisit interim orders in service



                                               20
of the paramount goal of fair and accurate decisionmaking. (See, e.g., Le Francois v.
Goel (2005) 35 Cal.4th 1094, 1107–1109 [after denial of summary judgment motion and
filing of second summary judgment motion on the same grounds a year later, trial court
may may reconsider its original denial sua sponte in the absence of new facts or law]; In
re Marriage of Barthold (2008) 158 Cal.App.4th. 1301.) The City may well have
incurred some additional cost as a result of the court’s decision to revisit its initial
summary judgment decision by granting section 473 relief, but that was unavoidable.
Where the statute by its terms applies, and a court grants discretionary relief reopening
summary judgment proceedings, some replowing of ground will always be necessary.
The alternative the City suggests, in any event, would give it undeserved windfall
protection from exposure to Minick’s claim.
                                   III.    DISPOSITION
       The trial court’s order of August 7, 2014 granting Minick relief under section 473,
subdivision (b), from the grant of summary judgment against him is affirmed.




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                                          _________________________
                                          Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




A143187/Minick v. City of Petaluma



                                     22
Minick v. City of Petaluma (A143187)


Trial Court:   Sonoma County Superior Court

Trial Judge:   Hon. Gary Nadler

Counsel:

Meyers, Nave, Riback, Silver & Wilson, Kevin E. Gilbert and Kevin P. McLaughlin for
     Defendant and Appellant.

The Dolan Law Firm, Christopher B. Dolan; Dwyer + Kim and John P. Dwyer for
     Plaintiff and Respondent.




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