Filed 6/1/15 Saint-Fleur v. County of Fresno CA4




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

PIERRE ESTALIN SAINT-FLEUR,
                                                                                           F069764
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. 13CECG00838)
                   v.

COUNTY OF FRESNO et al.,                                                                  OPINION

         Defendants and Appellants.



         APPEAL from an order of the Superior Court of Fresno County. Donald S. Black,
Judge.
         Daniel C. Cederborg, County Counsel, Michael R. Linden and Bruce B. Johnson,
Deputy County Counsel, for Defendants and Appellants.
         Webb & Bordson; Law Office of Amy R. Lovegren-Tipton and Amy R.
Lovegren-Tipton for Plaintiff and Respondent.
                                                        -ooOoo-
       Plaintiff, Pierre Estalian Saint-Fleur, filed a motion under Code of Civil
Procedure,1 section 473, requesting that the judgment entered against him in this action
be set aside and that plaintiff be given leave to file an amended pleading. The trial court
found that plaintiff’s former attorney had completely abandoned plaintiff at a critical
stage of the litigation, resulting in the dismissal and judgment being taken against
plaintiff. The motion was accordingly granted. Defendants herein, County of Fresno,
Donna Taylor, Susan Holt and Beth Bandy (collectively defendants), appeal from the trial
court’s order on the ground that no adequate basis for relief was shown. We conclude the
trial court did not exceed its broad discretion in granting relief pursuant to section 473
under the circumstances of this case. Therefore, we affirm the order of the trial court.
                       FACTS AND PROCEDURAL HISTORY
Plaintiff’s Employment and Events Leading to Present Lawsuit
       Plaintiff was employed by the County of Fresno from 1990 to 2009 in the
Department of Children and Family Services. From 1991 to 2009, plaintiff’s particular
employment with the County of Fresno was as a licensed mental health clinician. His job
classification was “Senior Licensed Mental Health Clinician.” In 2004, plaintiff sought,
and was granted, military leave in order to serve as a Chaplain for our Nation’s armed
forces in a combat zone overseas in the Middle East. Upon his return in 2008, plaintiff
was reinstated by the County of Fresno. However, after his reinstatement, plaintiff was
allegedly targeted by his new supervisor, Deputy Director Donna Taylor (Taylor), who
purportedly treated plaintiff unfairly or harassed plaintiff. The alleged harassment
included allegations by Taylor that plaintiff had engaged in fraudulent billing practices.
Taylor conducted an investigation into plaintiff’s billing practices, but plaintiff was not




1     Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.


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given an opportunity to respond to the allegations. Plaintiff believed the allegations were
entirely unfounded.
       According to plaintiff, other forms of harassment and demeaning treatment by
Taylor persisted, which created an intolerable work environment that eventually led
plaintiff to take an early retirement from the County of Fresno in 2009. However, in
response to the alleged conduct by Taylor, plaintiff filed an action in the U.S. District
Court on January 4, 2010, alleging that the County of Fresno violated plaintiff’s rights
under the Uniformed Services Employment and Reemployment Rights Act (38 U.S.C.
§ 4301 et seq.). The U.S. District Court action was settled by the parties in December
2010. The terms of that settlement included the payment to plaintiff of the sum of
$100,000.00 by the County of Fresno, and a release of all claims on plaintiff’s part.
       Following his retirement from the County of Fresno, plaintiff returned to his work
as a military Chaplain in the armed forces of the United States, stationed in the Middle
East and other locations.
       In 2012, after returning home from his overseas duties as military Chaplain,
plaintiff needed to obtain a renewal of his security clearance in order to continue his work
with the armed forces. For purposes of obtaining the renewed security clearance,
plaintiff believed he had to have access to the County of Fresno’s investigation file
concerning the accusations of fraudulent billing practices. Accordingly, beginning in
2012, plaintiff made several written requests to obtain copies of the investigation file
relating to plaintiff’s billing practices. However, the County of Fresno refused to provide
access to the requested files.
       The County of Fresno’s response to plaintiff’s written requests disclosed that a
number of the investigated billing matters were found to have been “overstated” by
plaintiff, and that Medi-Cal had to be reimbursed in the amount of $3,681.45, but the
investigation did not find any deliberate misconduct or fraud on plaintiff’s part.
According to the County of Fresno, no formal discipline was imposed and therefore the

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investigation documents were not made part of plaintiff’s personnel record. In any event,
the County of Fresno’s position was that it would not comply with plaintiff’s demand to
be provided with a complete copy of the investigative files.
Proceedings Leading to Dismissal of Plaintiff’s Action
       On March 18, 2013, plaintiff filed his original complaint in the Fresno County
Superior Court against the County of Fresno and several employees of the County of
Fresno. The complaint alleged that defendants “intentionally and/or negligently
maintained records of the fraud investigation … including the incorrect findings (which
plaintiff disputes) that improper billing took place.” The complaint further alleged that
defendant, County of Fresno, “refuse[d] to provide plaintiff with complete copies of their
records pertaining to him ….” As a proximate result of defendants’ conduct, the
complaint asserted that plaintiff “has been unable to obtain the requisite security
clearance and has lost the opportunity to apply for various civilian employment positions
….”
       On April 4, 2013, defendants filed a demurrer to the complaint. On July 9, 2013,
before the continued hearing date for the demurrer, plaintiff filed a first amended
complaint.
       On July 18, 2013, defendants filed a demurrer to the first amended complaint. On
August 14, 2013, the trial court issued its tentative ruling sustaining the demurrer to the
first amended complaint with 10 days leave to amend. In its ruling, the trial court
explained that plaintiff had failed to allege any statutory basis for a mandatory duty of
care relating to plaintiff’s employment records. On August 15, 2013, the tentative ruling
became the order of the court. The 10 days leave to amend was effective from the date of
service of the order. The clerk served the order on August 20, 2013.
       The 10-day period for leave to amend expired and plaintiff failed to file a second
amended complaint. On September 11, 2013, defendants County of Fresno, Donna
Taylor, Susan Holt and Beth Bandy, moved for an order dismissing the action on the

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ground that the demurrer was sustained with leave to amend and the plaintiff failed to file
an amended pleading.2 No opposition to the motion to dismiss was filed and no request
for oral argument was made in response to the tentative ruling granting the motion. The
trial court granted the motion on October 30, 2013, and the action was ordered dismissed
with prejudice as to the above-named defendants. On November 6, 2013, based on the
dismissal order, a judgment was entered in favor of defendants, County of Fresno, Donna
Taylor, Susan Holt and Beth Bandy. On November 8, 2013, a notice of entry of
judgment was served by mail on plaintiff’s attorney of record.
Plaintiff’s Section 473 Motion to Vacate Judgment
       Throughout the proceedings described above, plaintiff was represented by
attorneys Jeffrey Purvis and Michael Elder of the Law Offices of Purvis & Elder, LLP.
On December 6, 2013, plaintiff filed a substitution of attorney form designating attorney
Amy Lovegren-Tipton of the Law Offices of Webb & Bordson, APC, as plaintiff’s new
attorney and legal representative in this case.
       On January 3, 2014, plaintiff—by and through his new attorney—filed a motion to
vacate the judgment of dismissal and to file a second amended complaint. The stated
ground for this relief under section 473 was that the judgment taken against plaintiff was
a result of his mistake, inadvertence, surprise, or excusable neglect. Allegedly, plaintiff
was unaware that he could amend the pleadings to cure the defect identified in the
demurrer and he was never advised of the existence of the motion to dismiss. He had
counted on his former attorney to help him navigate the legal issues and to keep him
informed, but that did not happen. Instead, plaintiff’s former attorney ceased further
effort in the case based on an assumption the pleading defect was incurable, and told
plaintiff that if he wanted to continue he should find another attorney to handle an appeal

2      We note that defendants Angela Jaime and Gloria Rocha were already dismissed
from the case before the time of this motion as a result of plaintiff’s failure to serve the
summons and first amended complaint on them.


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from the demurrer ruling. Plaintiff diligently sought to retain another attorney, and was
able to do so, but it was too late to prevent the dismissal and judgment. Plaintiff’s motion
to vacate was accompanied by a proposed second amended complaint, which included
allegations showing a potential statutory basis for a duty to provide plaintiff an
opportunity to inspect his personnel records on file with the County of Fresno (i.e., Gov.
Code, § 31011 and Lab. Code, § 1198.5).
       On January 3, 2104, in addition to filing the above motion to vacate, plaintiff
concurrently filed a notice of appeal from the judgment of dismissal. Plaintiff’s appeal
was later abandoned or dismissed by plaintiff in order to preserve the trial court’s
jurisdiction to hear the section 473 motion.
       On February 5, 2014, defendants filed their opposition to plaintiff’s motion to
vacate judgment. Defendants argued that there was no excusable neglect as required by
section 473, but rather plaintiff’s former counsel simply made an informed decision not
to file a second amended complaint. According to defendants, to the extent that this
decision was wrong or mistaken, it constituted professional negligence by the attorney
that was inexcusable, and such inexcusable neglect is ordinarily imputed to the client and
does not provide a basis for relief.
       On February 25, 2014, plaintiff’s reply was filed. Plaintiff’s reply emphasized his
promptness in seeking section 473 relief, the policy favoring trial on the merits, the lack
of prejudice to defendants if relief were granted, and the fact that the proposed second
amended complaint identified a statutory basis for a duty to allow plaintiff access to his
personnel records.
       The motion was heard by the trial court on June 3, 2014, and after oral argument
was completed, the matter was taken under submission. On June 6, 2014, the trial court
issued its order granting plaintiff’s motion to vacate judgment and to file a second
amended complaint. The order explained the trial court’s ruling as follows:



                                               6.
          “On the merits, plaintiff has shown he was abandoned by his former attorney.
          Although an attorney has exclusive charge of the proceedings on behalf of his
          client, the attorney cannot impair or destroy the client’s cause of action. (Daley v.
          Butte County (1964) 227 Cal.App.2d 380, 391.) This is exactly what happened
          here. The attorney failed to even tell Plaintiff he would have to substitute out of
          the case; that step was left until Plaintiff found new counsel. While he was still
          attorney of record, the attorney did nothing about the dismissal motion; by then, he
          should have substituted out of the case and at least let Plaintiff handle it himself.
          Plaintiff had legal representation only in a nominal and technical sense. [¶]…[¶]
          Here, the strong evidence of attorney abandonment and plaintiff’s quick response
          when he knew he had to take action [to] justify finding the judgment to have been
          entered as a result of plaintiff’s mistake or excusable neglect, particularly given
          that no prejudice has been demonstrated. [¶] The court also grants plaintiff leave
          to file his amended complaint. Issues related to the legal validity of the claims
          plead can be addressed through pleading practice, if necessary.”
          On June 13, 2014, defendants timely filed their notice of appeal from the above
ruling.
                                         DISCUSSION
I.        Standard of Review.
          A motion for relief from a judgment, order or other proceeding may be made on
the ground that it was taken against the moving party as a result of mistake, inadvertence,
surprise or excusable neglect. (§ 473, subd. (b).) Whether to grant such relief lies within
the sound discretion of the trial court, and the trial court’s decision will not be overturned
absent an abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233
(Elston).)3 The discretionary relief provided under section 473, subdivision (b) is applied
liberally where the party moves promptly to seek relief and no prejudice will be suffered
by the party opposing the motion if relief is granted. In such instances, only very slight
evidence is needed to justify relief. (Elston, supra, at p. 233; Rogalski v. Nabers Cadillac
(1992) 11 Cal.App.4th 816, 819-820.) Additionally, because the law favors trial on the



3     We note that this case does not involve the mandatory relief provision of section
473 premised on an attorney affidavit of fault.


                                                7.
merits, doubts are to be resolved in favor of the party seeking relief. (Elston, supra, at
p. 233.)
       In the absence of a “clear showing” of abuse of discretion, the trial court’s order
granting relief under section 473 may not be disturbed on appeal. (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478.) “The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason. When two or more inferences can reasonably
be deduced from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.” (Id. at pp. 478-479.)
II.    Section 473 Relief Based on Attorney Abandonment of Client.
       Defendants contend the trial court abused its discretion in granting plaintiff’s
motion to vacate the judgment pursuant to section 473. Specifically, defendants argue
there was no adequate factual basis to support the trial court’s conclusion that plaintiff’s
former counsel had abandoned plaintiff at a critical juncture in the case. We disagree
with defendants’ argument, as we proceed to explain.
       Generally speaking, a party who seeks discretionary relief under section 473 based
on his or her attorney’s mistake or neglect must demonstrate that such mistake or neglect
was excusable. That is because, as a general rule, an attorney’s inexcusable neglect is
chargeable to the client and does not support relief under section 473; instead, the client’s
sole redress in such cases is an action for malpractice. (Carroll v. Abbott Laboratories,
Inc. (1982) 32 Cal.3d 892, 895, 898 (Carroll).) However, California courts recognize an
exception to this rule in cases ‘“where the attorney’s neglect is of that extreme degree
amounting to positive misconduct, and the person seeking relief is relatively free from
negligence. [Citations omitted.]…’” (Id. at p. 898.) “‘The exception is premised upon
the concept 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.’
(Italics added.) [Citations.] Courts applying that exception have emphasized that ‘[an]
attorney’s authority to bind his client does not permit him to impair or destroy the client’s

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cause of action or defense.’ [Citations.]” (Ibid.)4 “Imputation of the attorney’s neglect to
the client ceases at the point where ‘abandonment of the client appears.’ [Citation.]”
(Seacall Development Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201,
205 (Seacall).)
       What constitutes abandonment of the client is a factual question for a trial court to
decide based on the facts and circumstances of each particular case. (Seacall, supra, 73
Cal.App.4th at p. 205.) “[C]ourts also consider equitable factors in deciding whether the
dismissal of an action should be set aside.” (Ibid.) These factors include the client’s own
conduct in pursuing and following up the case, and whether the defendant would be
prejudiced by allowing the case to proceed. (Ibid.) In determining whether a client has
been abandoned and is entitled to relief, the trial courts “must also balance the public
policy favoring a trial on the merits against the public policies favoring finality of
judgments and disfavoring unreasonable delays in litigation [citation] and the policy an
innocent client should not have to suffer from its attorney’s gross negligence against the
policy a grossly incompetent attorney should not be relieved from the consequences of
his or her incompetence. [Citation.]” (Ibid.)
       In Daley v. County of Butte (1964) 227 Cal.App.2d 380, the attorney failed to
appear at necessary hearings, serve process, seek extensions of time, or adequately
communicate with the client or the court. Rather than taking action in the case, the
attorney was guilty of “holding the substitution of attorneys for more than five months
while his client’s cause ripened for disaster” (id. at p. 392); and “by his refusal to get on
with the lawsuit or get out of it, [the attorney] inflicted severe damage on his client’s
case.” (Ibid.) Such attorney neglect amounted to “positive misconduct” that caused the


4      As the Supreme Court put it in the Carroll case, a common factor in these
exceptional cases was “a total failure on the part of counsel to represent the client: each
attorney had de facto substituted himself out of the case.” (Carroll, supra, 32 Cal.3d at p.
900.)


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client to be “effectually and unknowingly deprived of representation.” (Id. at p. 391.)
Given the circumstances, the court found that plaintiff “had legal representation only in a
nominal and technical sense.” (Id. at p. 392.) Noting that “[a]n attorney’s authority to
bind his client does not permit him to impair or destroy the client’s cause of action
[citations]” (id. at p. 391), the Court of Appeal concluded that since the plaintiff was
deprived of effective representation by the attorney’s abandonment of her case, she
would not be charged with responsibility for the misconduct of her “nominal counsel of
record.” (Id. at p. 392.)
       In the present case, the trial court found that plaintiff’s former counsel had
completely abandoned plaintiff’s interests at a critical juncture in the case, resulting in the
dismissal judgment being taken against plaintiff. It appears that the trial court’s finding
of abandonment was supported by a number of facts. According to the declaration filed
by plaintiff in support of his motion to vacate, plaintiff’s former attorney told plaintiff, in
a conversation in mid-August 2013, that in his view the pleading defect indicated in the
trial court’s ruling on demurrer could not be cured, and he also informed plaintiff that if
he wanted to continue he would have to find another attorney to handle an appeal from
the demurrer ruling. Plaintiff immediately began seeking alternative representation. The
problem with the above-described scenario, from the standpoint of plaintiff, was that
plaintiff’s former counsel did nothing after that conversation to protect plaintiff’s
interests or to inform plaintiff he would need to take immediate action to preserve his
potential claims. Instead, plaintiff’s former attorney effectively walked away from the
case and from plaintiff.
       To summarize, the record reflects that plaintiff’s former attorney did not substitute
out of the case, did not advise plaintiff of the need to file a substitution of attorney, and
did not inform the court that plaintiff was looking for new counsel. Instead, plaintiff’s
former attorney remained plaintiff’s nominal or technical attorney of record, but
meanwhile did nothing to protect plaintiff’s interests while crucial deadlines came and

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went. No extension of time to amend the complaint was sought while plaintiff was
attempting to find other counsel, and no opposition to the dismissal motion was filed.
Meanwhile, plaintiff for his part diligently sought a new attorney, and found one, but by
then it was too late to either timely amend the complaint or to prevent dismissal. In fact,
as noted, plaintiff was not even informed of the dismissal motion. Once plaintiff
obtained his new counsel, he promptly moved to vacate the judgment and for leave to file
a second amended complaint. Plaintiff’s new counsel identified statutory grounds to
support a duty to provide access to personnel files (i.e., Gov. Code, § 31011 and Lab.
Code, § 1198.5), which were alleged as the statutory basis for seeking relief under the
proposed second amended complaint.
       We believe the above facts were sufficient to support the trial court’s conclusion
that plaintiff’s former attorney abandoned plaintiff at a critical juncture in the case,
resulting in the dismissal and judgment being taken. Again, at the decisive moment when
the complaint had to be amended (or more time to amend sought) and/or the dismissal
motion opposed, plaintiff’s then attorney had already given up on plaintiff’s cause and
did nothing to protect plaintiff’s interests. Although plaintiff’s former counsel was at that
time nominally plaintiff’s attorney of record, his inaction and lack of communication to
attempt to protect plaintiff’s interests left plaintiff effectively without any representation.
True, plaintiff was told he needed to find another attorney if he wanted to pursue an
appeal, but that was mentioned at a time when immediate action had to be taken to
preserve plaintiff’s claims, and the procedural context was such that plaintiff could not be
reasonably expected as a laymen to know what to do.
       Furthermore, the equitable considerations also weigh in favor of relief, because
not only did plaintiff act promptly and diligently to pursue relief once the dismissal and
judgment were entered, but there would not appear to be any prejudice to defendants in
granting relief. In conclusion, the facts and circumstances support the trial court’s



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conclusion that “plaintiff … was abandoned by his former attorney” and “had legal
representation only in a nominal and technical sense.”
       The primary argument raised by defendants is that plaintiff’s former attorney
merely made a strategic decision not to amend the pleading. According to defendants,
since attorneys are free to make strategic litigation decisions on behalf of their clients, no
relief should be afforded to plaintiff. In support of this proposition, defendants cite Cadle
Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504 (Cadle Co.).
In that case, which involved an action on a guaranty to recover amounts due on a
promissory note, the guarantor’s attorney made a strategic litigation decision to have a
court trial rather than a jury trial. His client, the guarantor, was present in court when the
attorney waived the right to a jury trial and said nothing to indicate a lack of agreement
with his attorney’s strategy decision. The Court of Appeal found the jury trial waiver to
be valid for two reasons. First, trial counsel is authorized to exercise his independent
judgment with respect to strategic litigation decisions. (Id. at p. 510.) Second, the client
“may not simply sit by in silence, take his chances on a favorable judgment and then,
after an adverse judgment, complain on appeal.” (Id. at p. 511.) We find Cadle Co. to be
distinguishable. In that case the attorney simply selected one method of trial over
another; the client’s cause of action remained intact and was not lost or impaired. That
was markedly different from what occurred here, where plaintiff’s former attorney—by
his inaction—effectively sealed plaintiff’s fate and forced the trial court to dismiss the
action. As the California Supreme Court has recognized in discussing the concept of
attorney abandonment, “‘[a]n attorney’s authority to bind his client does not permit him
to impair or destroy the client’s cause of action or defense.’” (Carroll, supra, 32 Cal.3d
at p. 898.)
       Finally, defendants argue there was no abandonment here because a timely appeal
of the demurrer ruling was still feasible, and plaintiff’s new attorney had even filed a
notice of appeal. Defendants’ argument is apparently that plaintiff’s claims were

                                             12.
preserved, not lost, because of this potential to appeal from the demurrer ruling after the
judgment was entered. The problem, however, is that the appeal would be from a ruling
to sustain a demurrer with leave to amend, where the party failed to amend the
allegations. “When a plaintiff elects not to amend the complaint, it is presumed that the
complaint states as strong a case as is possible [citation]; and the judgment of dismissal
must be affirmed if the unamended complaint is objectionable on any ground raised by
the demurrer. [Citations.]” (Otworth v. Southern Pac. Transportation Co. (1985) 166
Cal.App.3d 452, 457.) Accordingly, in such an appeal, the reviewing court does not
consider the possibility that any defects could be cured by amendment. (Holcomb v.
Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495; Ibarra v. California Coastal
Com. (1986) 182 Cal.App.3d 687, 692.) Here, such an appeal would have been an
exercise in futility because plaintiff’s ability to proceed in this matter depended on the
possibility of amendment, since there is no dispute that the unamended complaint failed
to allege any statutory basis for liability against the public entity defendants. For this
reason, we agree with plaintiff and the trial court that the abandonment by his former
counsel did result in the complete impairment or loss of plaintiff’s ability to proceed with
the case.
       In conclusion, defendants have failed to demonstrate that the trial court’s order
granting of relief under section 473 constituted a clear abuse of its discretion. On the
record before us, we are unable to say that the trial court exceeded its broad discretion in
ruling that plaintiff’s former counsel abandoned plaintiff and that relief was appropriate
under section 473. As discussed above, these were reasonable conclusions for the trial
court to reach on the factual record before it. In allowing plaintiff leave to file the second
amended complaint, the trial court’s order expressly permitted the validity of the




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allegations to be challenged by further pleading practice, if necessary. Our decision to
affirm the trial court’s section 473 ruling simply puts the parties back in that position.5
                                      DISPOSITION
       The order of the trial court is affirmed. Costs on appeal are awarded to plaintiff.

                                                                  _____________________
                                                                        LEVY, Acting P.J.
WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




5       The defendants do not argue on appeal that the second amended complaint fails to
state a cause of action.


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