Filed 2/9/16 Zhang v. Topline Properties CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


YAJUN ZHANG,                                                         H041092
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV178697)

         v.

TOPLINE PROPERTIES, LLC et al.,

         Defendants and Respondents.



         Plaintiff Yajun Zhang appeals from the superior court’s denial of his Code of Civil
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Procedure section 473, subdivision (b) motion. His motion sought to vacate the
judgments that were entered after demurrers were sustained without leave to amend to his
fourth amended complaint. Although he concedes that he was not entitled to
discretionary relief, he contends that the trial court erred in denying him mandatory relief
because he submitted a sworn affidavit from his attorney. We conclude that Zhang was
not eligible for mandatory relief and affirm the order.




1
         Subsequent statutory references are to the Code of Civil Procedure.
                                     I. Background
       Zhang’s fourth amended complaint for negligence, intentional tort, and premises
liability was filed in September 2013. In October 2013, defendant Topline Properties
LLC (Topline) filed a demurrer to the fourth amended complaint. In November 2013,
defendants Yu-hai Yang and Asia Express, Inc. (Asia Express) and defendant Milpitas
Square, LLC (Milpitas Square) also filed demurrers to the fourth amended complaint.
The demurrers were set for hearings on December 5 and December 10. On
November 26, Zhang’s attorney, Peter Chao, filed an eight-page memorandum of points
and authorities in opposition to the demurrers. Topline and Milpitas Square filed replies
to the opposition.
       The court heard the demurrers of Topline and Milpitas Square on
December 5, 2013 and the demurrers of Yang and Asia Express on December 10. All
three matters were submitted at the hearings. On December 24, the court issued an order
sustaining the demurrers of Topline and Milpitas Square without leave to amend. On
December 27, the court issued an order sustaining the demurrers of Yang and Asia
Express without leave to amend. On December 30, 2013, the court entered judgment in
favor of Topline and Milpitas Square. On January 8, 2014, the court entered judgment in
favor of Yang and Asia Express.
       In between the hearings on the demurrers and the orders sustaining the demurrers
without leave to amend, Zhang filed on December 13, 2013 a request for dismissal of his
action without prejudice. Zhang also filed a December 24 motion for a new trial, but the
court denied his new trial motion on February 7, 2014. Notice of entry of the
December 30, 2013 judgment was mailed to Zhang’s attorney on January 7, 2014.
Notice of entry of the January 8, 2014 judgment was mailed to Zhang’s attorney on
January 13, 2014. Notice of entry of the order denying Zhang’s new trial motion was
mailed to Zhang’s attorney on February 13, 2014. Zhang’s time to appeal from the
judgments expired in the middle of March 2014. (Cal. Rules of Court, rules 8.104(a) [60

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days from notice of entry of judgment], 8.108(b) [30 days from notice of entry of order
denying new trial].)
       On March 24, 2014, Zhang filed a motion under section 473, subdivision (b)
seeking to vacate the judgments of dismissal. In his points and authorities in support of
his motion, Zhang argued that he was entitled to either discretionary or mandatory relief
under section 473 “because of excusable neglect” due to the fact that his attorney had
been ill and unable “to focus and think clearly” from “prior to filing the opposition to
demurrers and continu[ing] until after the demurrers were heard.” He asserted that his
attorney “decided to forgo oral argument [on the demurrers] partially based upon a fear
that his flu would spread to defense counsel or court personnel.” Zhang’s motion was
accompanied by a brief declaration by his attorney, Peter Chao. Chao declared that he
was sick with the flu for more than a month and had written the opposition to the
demurrers while sick. During his illness, he had “an inability to focus and think clearly.”
He did not attend the hearing on the demurrers because he “was still coughing and did not
want others to catch the flu.”
       In opposition, defendants argued that Chao’s neglect was not excusable and that
mandatory relief was not available because the judgments after the sustaining of the
demurrers without leave to amend were not equivalent to default judgments or
“dismissals” as the term is used in section 473, subdivision (b). They noted that Chao did
not seek a continuance or appear telephonically at the hearings on the demurrers. In
addition, they pointed out that Zhang had not been diligent in seeking relief.
       On April 24, 2014, the court denied the motion. It found that “Plaintiff’s Counsel
has not made the requisite showing for relief” under section 473, subdivision (b).
Zhang’s notice of appeal was filed on May 16, 2014.




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                                       II. Discussion
       Zhang’s appeal is solely from the denial of his section 473 motion, and his only
claim concerning the denial of that motion that he makes in his appellate briefs is that the
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trial court erred in denying him mandatory relief under section 473, subdivision (b).
       Section 473, subdivision (b) 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. Application for this relief shall be accompanied by a copy
of the answer or other pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was taken. . . .
Notwithstanding any other requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry of judgment, is in
proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the
clerk against his or her client, and which will result in entry of a default judgment, or (2)
resulting default judgment or dismissal entered against his or her client, unless the court
finds that the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.” (Italics added.)
       Mandatory relief is available only from a “default,” “default judgment[,] or
dismissal” that is the result of an attorney’s “mistake, inadvertence, surprise, or neglect.”
(§ 473, subd. (b).) The dispositive issue is whether Zhang’s motion fell within the
mandatory relief provisions.



2
        Zhang cites Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, but Fasuyi has
no relevance here because it was a challenge to the denial of a motion for discretionary
relief. (Id. at p. 694.)

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        Zhang claims that his motion properly sought relief from a “dismissal” within the
meaning of section 473, subdivision (b). He relies on Avila v. Chua (1997) 57
Cal.App.4th 860 (Avila). Avila was a challenge to the denial of a motion for mandatory
relief. The plaintiff’s attorney had failed to timely serve and file opposition to motions
for summary judgment. (Avila, at p. 864.) She served and filed an untimely response and
sought a continuance of the hearing on the motion. (Ibid.) The trial court denied the
request for a continuance, struck the untimely responses, and granted the motion. (Ibid.)
The attorney immediately filed a section 473 motion seeking relief based on her
declaration that the fault was hers in failing to correctly note when the opposition was
due. (Avila, at p. 865.) The motion was denied, and the plaintiff appealed. (Id. at
p. 865.) The Second District Court of Appeal concluded that mandatory relief should
have been granted because the summary judgment motion was decided without
considering any opposition. In the Second District’s view, that was tantamount to a
default or dismissal because the case had not been litigated on its merits. (Id. at pp. 867-
868.)
        The Second District’s construction in Avila of section 473’s mandatory relief
provision has been rejected by other courts. In Huh v. Wang (2007) 158 Cal.App.4th
1406 (Huh), this court rejected Avila and held that mandatory relief was not available
where the plaintiff’s attorney failed to file opposition to a summary judgment motion and
failed to appear at the hearing on the motion. (Huh, at pp. 1412, 1415.) This court, like
other courts, concluded that “dismissal,” as it is used in section 473’s mandatory relief
provision, means “ ‘ “the withdrawal of an application for judicial relief by the party
seeking such relief, or the removal of the application by a court.” ’ ” (Huh, at p. 1416.)
Since the resolution of a motion challenging the merit of the plaintiff’s case did not meet
this definition, the plaintiff in Huh was not eligible for mandatory relief. (Huh, at
p. 1418.)



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       Huh involved a summary judgment motion, while this case involves a demurrer,
but the same reasoning applies. Unlike a default or a dismissal on nonsubstantive
grounds, a demurrer, like a summary judgment motion, challenges the merits of the
plaintiff’s action. A demurrer asserts that the facts alleged in the complaint do not merit
relief. A summary judgment motion asserts that the plaintiff cannot prove facts that will
merit relief. In both cases, the resolution of the motion turns on the substantive merits of
the case. Thus, it cannot be said that the resolution of the motion deprives the plaintiff of
his or her day in court. We hold that an order sustaining a demurrer without leave to
amend and the judgment entered on it is not a “dismissal” within the meaning of
section 473’s mandatory relief provision. Zhang’s motion did not qualify for mandatory
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relief because it did not seek relief from a dismissal.
       There is no merit to Zhang’s argument that his December 13, 2013 request for
voluntary dismissal “qualifies as a dismissal for the application of CCP Sec. 473(b)
relief.” His section 473 motion did not seek relief from his own voluntary dismissal, and
Chao did not claim that requesting the voluntary dismissal was a mistake.
       Although Zhang acknowledges that the “issue of the propriety of the voluntary
dismissal is not before this court,” he argues that the voluntary dismissal “should be
presumed valid” and that therefore the judgments “had no legal effect . . . .” Zhang did
not appeal from the judgments. His appeal is solely from the denial of his section 473
motion. Accordingly, the validity of Zhang’s voluntary dismissal and its possible impact
on the judgments is not before us.




3
        Zhang claims in his reply brief that the mistake that his attorney made was in
failing to file a fifth amended complaint before the hearings on the demurrers to the
fourth amended complaint. This would not change the fact that Zhang did not seek relief
from a “dismissal.”

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                         III. Disposition
The order is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




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