Filed 1/13/15 Roth v. Glickman CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


STEVEN ROTH,                                                         B253835

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC460426)
         v.

STEVEN C. GLICKMAN et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Soussan G. Bruguera, Judge. Affirmed.


         Morris Polich & Purdy, Jens B. Koepke and J. Scott Miller for Plaintiff and
Appellant.


         Hollins & Levy, Byron S. Hollins, Laura M. Levy and Adam L. Robinson for
Defendants and Respondents.


                                                       ******
       Plaintiff Steven Roth filed this action for legal malpractice and negligent
misrepresentation against Steven C. Glickman and Glickman & Glickman (collectively,
Glickman). Roth appeals from the trial court’s order denying his motion to set aside the
dismissal of the action. On appeal, he argues he committed a mistake of fact justifying
relief from the dismissal under Code of Civil Procedure section 473.1 We hold the trial
court did not abuse its discretion and affirm.
                              FACTS AND PROCEDURE
1. Allegations of Original Complaint
       Roth filed this action against Glickman in April 2011 for legal malpractice and
negligent misrepresentation. His complaint alleged as follows. In October 2003, Joseph
Fryzer filed an action against Roth and Roth’s former employer, New York Life
Insurance Company (Fryzer action). Fryzer alleged he had lost $2.7 million in reliance
on false advice he received from Roth about an investment. Roth obtained a jury verdict
in his favor in the Fryzer action. After the verdict, in September 2007, Roth filed a
malicious prosecution action against Fryzer and his attorneys, among others, for bringing
the Fryzer action. Roth’s first counsel in the malicious prosecution action, Steven
Klugman, advised him that he had a strong case.
       Roth met with Glickman two days after Klugman filed the complaint in the
malicious prosecution action to discuss Glickman’s associating into the case. At that
meeting, Roth informed Glickman of Klugman’s assessment of the case, and Glickman
fully concurred with it. Glickman made further representations about his extensive
experience with malicious prosecution cases and his opinion of the strength of Roth’s
case. At no point did Glickman advise Roth that the malicious prosecution action would
be subject to section 425.16, which permitted the dismissal of a strategic lawsuit against
public participation (the anti-SLAPP statute). Nor did Glickman advise Roth that he
would be liable for attorney fees and costs, if the court granted any anti-SLAPP motion.


1      Further undesignated statutory references are to the Code of Civil Procedure.



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Further, he did not advise Roth that prevailing in a malicious prosecution action was
extremely difficult. The trial court went on to grant the anti-SLAPP motions of all the
defendants in the malicious prosecution action, and the court held Roth liable for the
attorney fees and costs of the defendants. Roth alleged Glickman’s failure to advise him
of the risks of the malicious prosecution action was negligent and fell below the
applicable standard of care. Moreover, Glickman’s statements about his abilities and the
merits of the malicious prosecution action were negligent misrepresentations.
2. Glickman’s Demurrers, the Filing of Amended Complaints, and the Dismissal of
the Action
       Glickman demurred to the complaint, the first amended complaint, and the second
amended complaint, all of which the court sustained with leave to amend. Roth served
Glickman with a third amended complaint (TAC), but did not file the TAC. Instead,
three days after he served the TAC, Roth served and filed an “amended third amended
complaint” (ATAC). At this point, Roth’s attorney had substituted out and Roth had
been representing himself for several months; Roth filed a substitution of attorney in June
2012 and served the TAC in November 2012.
       Glickman filed a demurrer and a motion to strike portions of the ATAC in
December 2012. Among other things, Glickman’s motion to strike argued the ATAC
was essentially an unauthorized fourth amended complaint. On March 19, 2013, Roth
filed a request for dismissal without prejudice of the ATAC. The court entered the
dismissal on the date.
       At the same time, Roth filed a “response” to the demurrer. In his response, he
noted Glickman had demurred to the ATAC but had not answered the TAC, which he
described as “the operative complaint” because he had dismissed the ATAC. He also
stated that as a result of his dismissal of the ATAC, the demurrer hearing was “moot” and
Glickman was “on notice to either answer or otherwise respond to the [TAC].” Glickman
filed a reply arguing the ATAC superseded all prior complaints and was the operative
complaint, and Roth had dismissed it. As such, the court should deem the action
dismissed and not allow further amendments. At the demurrer hearing, the court agreed


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with Glickman and deemed the “entire matter” dismissed and ordered Glickman to
submit a proposed order. The court entered an order dismissing the action on April 9,
2013.
3. Roth’s Motion to Set Aside the Dismissal
        On June 21, 2013, Roth filed a motion to set aside the dismissal and “reinstate” the
TAC pursuant to section 473. Roth’s declaration in support of the motion stated as
follows. He had filed the TAC with leave of court, and then three days later, he filed the
ATAC to add “a few allegations [he] neglected to include in the TAC.” When Glickman
moved to strike the ATAC because Roth filed it without obtaining leave to amend, Roth
realized Glickman was correct and became convinced the court would grant Glickman’s
motion to strike. After researching what would happen if he voluntarily dismissed the
ATAC without prejudice, he believed that voluntarily dismissing the ATAC would leave
the TAC as the operative complaint. He did not believe his dismissal of the ATAC
would dismiss the entire action, nor did he intend to dismiss his entire action. He argued
that he operated under an excusable mistake of law, and accordingly, the court should
grant his motion to set aside the dismissal.
        Glickman’s opposition to the motion argued Roth’s claimed mistake of law did not
justify relief. An honest mistake of law was grounds for relief when the legal issue was
both complex and debatable, which the issue was not here. (State Farm Fire & Casualty
Co. v. Pietak (2001) 90 Cal.App.4th 600, 611 (Pietak)).
        The opposition pointed out that Roth had served but not filed the TAC. Roth’s
reply brief insisted that he believed the TAC had been filed and he would not have filed
the ATAC otherwise. The court denied Roth’s motion and Roth filed a timely notice of
appeal.
                                      DISCUSSION
        Under section 473, the court may relieve a party from a dismissal taken against the
party through his or her “mistake, inadvertence, surprise, or excusable neglect.” (§ 473,
subd. (b).) An order denying relief from dismissal under section 473 rests in the sound
discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 232-233


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(Elston), superseded by statute on other grounds.) Thus, we will not reverse the order
absent a clear abuse of discretion. (Ibid.; Pietak, supra, 90 Cal.App.4th at p. 610.)2
          Courts often apply section 473 liberally when the movant promptly seeks relief
and the party opposing the motion will not suffer prejudice if the court grants it. (Elston,
supra, 38 Cal.3d at p. 233.) In such cases, slight evidence will be required to justify
setting aside the dismissal. (Ibid.) “Moreover, because 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 . . . .” (Ibid.) Therefore, we more carefully scrutinize a trial court
order denying relief than one granting relief and permitting disposition on the merits.
(Ibid.)
          A mistake justifying relief may be a mistake of fact or a mistake of law. “‘A
mistake of fact is when a person understands the facts to be other than they are; a mistake
of law is when a person knows the facts as they really are but has a mistaken belief as to
the legal consequences of those facts.’” (Hodge Sheet Metal Products v. Palm Springs
Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) The mistake in either case must be
material and excusable. (Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1017;
Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶
5:311, pp. 5-88 to 5-89.)
          On appeal, Roth argues he made a material mistake of fact in that he erroneously
believed he had filed the TAC. He contends he would not have dismissed the ATAC, had
he known the TAC had not been filed. Glickman argues we should find Roth forfeited



2      Section 473, subdivision (b), also contains a “mandatory” relief provision when
the motion is accompanied by an “attorney affidavit of fault” in which the attorney for
the moving party attests to his or her mistake, inadvertence, surprise, or neglect. (Zamora
v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Pietak, supra, 90
Cal.App.4th at pp. 608-609.) But the mandatory relief provision does not operate in
favor of parties representing themselves in pro. per. It applies only in cases of attorneys
representing clients. (Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093,
1100.) Accordingly, it has no application in this case.



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the “mistake of fact” argument because he did not raise it below. It is true Roth expressly
based his motion on a mistake of law—namely, his misunderstanding that if he dismissed
the ATAC, the TAC would become the operative complaint. His motion and supporting
declaration did not mention that he mistakenly believed the TAC had been filed. It was
not until his reply brief, after the opposition pointed out he had not filed the TAC, that
Roth argued he mistakenly believed the TAC was filed (“Plaintiff believed that the
[TAC] had been filed, otherwise, he would not have filed an [ATAC]”). Because Roth
noted the purported mistake of fact at some point in the trial court, we do not think it
appropriate to deem the issue entirely forfeited.
       Still, Roth has essentially changed his operative theory from a mistake of law to a
mistake of fact, since failing to prevail in the trial court. One consequence of the change
is that the record does not support his new theory. Roth failed to show an excusable
mistake of fact justifying relief.
       It was Roth’s burden to affirmatively show his mistake of fact was excusable, i.e.,
that a reasonably prudent person might have made the same error under the same or
similar circumstances. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th
at p. 258; Kendall v. Barker (1988) 197 Cal.App.3d 619, 623; 8 Witkin, Cal. Procedure
(5th ed. 2008) Attack on Judgment in Trial Court, § 179, p. 779 [“To obtain discretionary
relief, the moving party must show, by affidavit or other proof, a reasonable excuse.”
(Italics omitted.)].) This burden necessarily required the production of evidence, and a
preponderance of that evidence should have demonstrated an excusable mistake.
(Kendall v. Barker, supra, at p. 624.) Further, it is Roth’s burden on appeal to
affirmatively demonstrate error. (Pietak, supra, 90 Cal.App.4th at p. 610.)
       But Roth presented no evidence of his mistake at all, other than the bare assertion
in his reply brief that he believed the TAC was filed. On appeal, he now characterizes his
mistake as “excusable,” “understandable,” and “reasonable,” but we cannot imagine how
we are supposed to agree with that determination when we have no idea why he believed
he had filed the TAC or how he arrived at that mistaken conclusion. His claim of mistake
begs for an explanation, especially because he was in pro. per., would have been


                                              6
responsible for his own filings, and should know where he went wrong. In this light, the
failure to provide a reasonable explanation is particularly conspicuous.
       With no explanation for the mistake, the trial court had no basis to conclude the
mistake was one a reasonably prudent person could have made under the same
circumstances. We cannot say the court clearly abused its discretion when there was not
even slight evidence justifying Roth’s claimed mistake of fact. (See Hopkins & Carley v.
Gens (2011) 200 Cal.App.4th 1401, 1411 [movant’s failure to provide specific facts
explaining the mistake was fatal to the § 473 motion; it made it “impossible to determine
what the supposed mistake was and whether it furnished a legally sufficient excuse”].)
       The authorities on which Roth relies are inapposite. In H.D. Arnaiz, Ltd. v.
County of San Joaquin (2002) 96 Cal.App.4th 1357, 1360, the trial court granted the
plaintiff relief from a voluntary dismissal, and the appellate court found no abuse of
discretion. The plaintiff brought the action for breach of an option to lease. (Ibid.) But
then the plaintiff exercised the option to lease and tried to negotiate with the defendant
for development of the leased property. (Ibid.) The litigation apparently interfered with
these negotiations, and the plaintiff dismissed the action without prejudice. (Ibid.) It
eventually moved to vacate the dismissal based on mistake of fact. It attested to the
mistaken belief that if it dismissed the action, the defendant would cooperate by
negotiating with it for development of the property. (Id. at p. 1361.) Instead, the
defendant had terminated the lease. (Ibid.) The issue in the case was whether the
“mistake” was truly a mistake of fact, or just a poor tactical decision that did not justify
relief. (Id. at pp. 1368-1369.) The issue was not whether the plaintiff had submitted
sufficient evidence of excuse for the mistake. As such, the case is not on point and does
not assist Roth.
       In all the other cases on which Roth relies, most of them in a string cite, the
claimed mistakes of fact were supported by affidavits or declarations giving specific (and
in many cases, extremely detailed) explanations of the circumstances under which the
mistakes arose. (See Riskin v. Towers (1944) 24 Cal.2d 274, 275-276; Bergloff v.
Reynolds (1960) 181 Cal.App.2d 349, 352-354; Hadges v. Kouris (1945) 71 Cal.App.2d


                                              7
213, 214-216; Salazar v. Steelman (1937) 22 Cal.App.2d 402, 405-407; Weck v. Sucher
(1929) 96 Cal.App. 422, 423-424; Nicol v. Davis (1928) 90 Cal.App. 337, 338-340.) The
evidentiary record in these cases clearly distinguishes them from this case.
                                     DISPOSITION
       The order is affirmed. Glickman shall recover costs on appeal.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




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