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Court of Appeal, Second District, Division 2, California.

James Douglas CARROLL, a minor by his Guardian ad Litem, Monica Denise Carroll, Plaintiff and Respondent, v. ABBOTT LABORATORIES, a corporation, Defendant and Appellant.

Civ. 61143.

Decided: August 25, 1981

Overton, Lyman & Prince, Jon P. Kardassakis, Los Angeles, for defendant and appellant. Lee W. Landrum, Los Angeles, for plaintiff and respondent.

On December 11, 1975, an action for personal injuries based, inter alia, on product liability was instituted by respondent, wherein appellant Abbott Laboratories, Inc. was named as one of the defendants. The substance of the complaint, insofar as it concerned appellant, was that Monica Carroll, the guardian ad litem herein, had during her pregnancy with respondent James Douglas Carroll and on the advice of her physician, ingested Nembutal, a barbiturate drug manufactured by appellant; that the drug was dangerous and unsafe for use by pregnant women; that its effects upon such persons was not adequately disclosed by appellant; and that respondent suffered brain damage as the result of its use by his mother.

As the matter proceeded to trial and as part of appellant's discovery efforts, appellant, on February 26, 1979, propounded to respondent its notice to produce documents, wherein it sought for inspection and copying all records concerning treatment of respondent at two hospitals in Vietnam during the period October 1972 August 1974, and a “baby book” which contained a record of certain facts regarding respondent's growth and development during his first eight years. The existence of these records (or, in the case of one of the hospitals, the possible existence) had been related to appellant by respondent's mother in her deposition of April 27, 1976. The apparent purpose in securing them was to assist appellant in ascertaining, if possible, when evidence of respondent's claimed injury had first appeared.

Four extensions of time within which to respond to the request were granted by appellant; to April 17, May 31, June 27 and early October 7, 1979.

On October 23, 1979, not having received the information, appellant moved to compel production of the documents. The motion was not opposed. Following hearing, which was not attended by respondent, his guardian, or his counsel, the trial court ordered respondent to comply with the request within fifteen days. That order was personally served on respondent's attorney.

When no response was forthcoming, appellant, on December 27, 1979, moved to dismiss for failure to comply, or, in the alternative, for a further order to produce. It likewise then filed its separate motion to compel answers to certain interrogatories. Neither of these motions was opposed.

After hearing on January 11, 1980, not attended by respondent, his guardian, or his counsel, the trial court again ordered production of the documents and, on its own motion, continued the motion to dismiss until January 24, 1980, for purposes of compliance review. It likewise ordered answers to the interrogatories described, and imposed sanctions in the amount of $500 against respondent. This order was also personally served on respondent's attorney.

On January 21, 1980, counsel for respondent sent to appellant's counsel answers to the interrogatories in question, though these were not properly verified. They were received January 23.

At the continued hearing on the motion to dismiss, again not attended by respondent, his guardian, or his counsel, the trial court order the action dismissed.

Respondent then filed its motion pursuant to Code of Civil Procedure section 473 seeking relief from the judgment of dismissal on the basis it had been taken through respondent's mistake, inadvertence, surprise or excusable neglect. In support of the motion, respondent maintained by declaration (1) that the documents (i. e., the medical records and the “baby book”) could not be produced because they were not in respondent's possession, if indeed they continued to exist at all, and (2) that an agreement had been reached between counsel for respondent and appellant, prior to the January 24 hearing, that the dismissal would not be entered.1 This motion was heard February 14, 1980.

At the conclusion of the hearing, the trial court granted the motion to set aside the order of dismissal, conditioned upon the filing by respondent and respondent's attorney, within ten days, declarations concerning the whereabouts of the requested documents.

No such declarations were forthcoming, and on February 29 respondent's motion pursuant to Code of Civil Procedure section 473 was by minute order marked off calendar for failure to comply with the conditions described.

On April 3, 1980, respondent again filed a motion pursuant to Code of Civil Procedure section 473. In this motion, respondent's counsel continued to assert the existence of an agreement with appellant's counsel that the dismissal would not be taken. At the same time, he conceded he learned from the guardian ad litem herein on February 15, 1980, one day after his original motion for relief had been conditionally granted, that she in fact did have the documents in question and that the reason he was not aware of it was that he had not contacted her since July 23, 1979. He likewise conceded that the documents had previously been in his possession, having been supplied to him in July and August of that year by the guardian but had been returned to her “for some reason or other which (respondent's counsel was) not able to explain,” since he had “no recollection of this rather disturbing event.”

Following hearing on this motion, the trial court made its minute order of May 23, 1980, wherein it recited that “The matter having been submitted and, after due consideration of the plaintiff's declarations in support of its motion to be relieved from a judgment of dismissal, the court finds and rules as follows: The court finds that the plaintiff's counsel has been grossly negligent in his representation of the plaintiff's interests and accepts as true that the plaintiff was not contacted at relevant times.”

In spite of the finding, the motion was again granted, conditioned on compliance by respondent in terms of producing the documents, verifying the interrogatories and paying additional sanctions to appellant in the amount of $750. On June 25, 1980, there was filed the trial court's order setting aside the order of dismissal, on the basis respondent had “substantially complied” with these conditions. This appeal followed. We reverse.

It is a familiar principle, grounded in the nature of the respective functions of trial and appellate courts, that a trial court has broad discretion in acting upon requests for relief falling within the scope of Code of Civil Procedure section 473 and will not have its exercise of such discretion set aside except where it has manifestly been abused. At the same time “ ‘The discretion intended, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice ’ ” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 526, 190 P.2d 593.)

Similarly, “The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief. When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law ‘(T) he law does not look with favor upon setting aside defaults or judgments resulting from inexcusable inadvertence, surprise or neglect of attorneys in the performance of their duties to their clients.’ ” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1979) 270 Cal.App.2d 275, 282, 75 Cal.Rptr. 848.)

Here, on respondent's initial motion for relief from the order of dismissal, three reasons were set forth in justification of the failure to comply with two previous court orders requiring production of documents; one, that respondent's counsel was engaged in trial during the period December 17, 1979, to January 14, 1980 (see Fn. 1); two, that the documents did not exist, or, at least, were not in respondent's possession, and; three, that it had been agreed between counsel for the parties that the dismissal would not be taken.

The first of these, quite simply, was insufficient for its intended purpose, both because it did not constitute a legally acceptable excuse (see Transit Ads, Inc. v. Tanner Motor Livery, Ltd., supra, 270 Cal.App.2d 275, 75 Cal.Rptr. 848) and because, as a factual matter, it could in no way have explained satisfactorily respondent's failure to act over a period of some eleven months following the initial discovery request.

The second was, in point of fact, a misrepresentation, which, even had it been true, was not adequate in terms of section 473, unaccompanied as it was with any explanation as to why it had not been proferred earlier.

[5]Finally, the third of the asserted reasons was likewise unacceptable, because it was inherently incredible. Thus, respondent's counsel specified in his declaration that, “This Declarant herewith states under oath that he was laboring under the mistaken belief that the attorney for the Defendant was going to inform the Court that he had the answers to Defendant's second set of interrogatories and that he had an inclusion (sic) and attached to said interrogatories a complete set of (certain other information) that had been in the possession of the Plaintiff's attorney since the inception of the case and that thereafter the case would not go to the decision of dismissal It was this counsel's impression from his conversation with Defendant's counsel that the answers to the interrogatories which was the basis of the Courts order sufficed to have the matter set, as satisfied, along with the assurance of defendant's counsel that he inform the Court of the fact that the answers had been provided. This counsel herewith states under oath to the Court that he would not have intentionally ignored the Courts orders with reference to the second set of interrogatories or the order (request) to produce documents. It was through this counsel's mistaken belief that counsel for Defendant would not seek dismissal since the answers to the interrogatories were in said counsel's possession at the time of the hearing on January 24, 1980.”

From this it is clear to us what the trial court was asked to believe was that, on the basis respondent's counsel had provided some response to the interrogatories involved and had indicated he did not think the medical record documents sought to be discovered were in his or his client's possession, that counsel for appellant would at that juncture simply let the matter drop and would himself appear alone at the hearing to see that the dismissal was not entered. No confirmation of any such agreement appears in the record. That such an accord had been reached was vigorously denied by appellant. In our view, no reasonable mind could have concluded it had been.

Accordingly, no justification was present to support the trial court's initial conditional setting aside of the dismissal.

[6]The same is true respecting its actions on respondent's second attempt at relief. Having then ascertained the records requested were indeed in his client's possession, respondent's attorney, in effect, sought to vacate the dismissal on the ground he was at last prepared to provide them to appellant as he had been requested for more than a year, and twice ordered by the court, to do. That belated willingness, however, had nothing to do with the question whether relief from the dismissal was called for on the basis the dismissal had been obtained through “mistake, inadvertence, surprise or excusable neglect.” Rather, the only showing actually made was that counsel for respondent failed to meet his obligation to provide the documents in issue and that the failure was without justification.

The orders appealed from are reversed.


1.  It was also suggested respondent's counsel had been unable to comply owing to being in trial on another matter during the period from December 17, 1979 to January 14, 1980.

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.