DOROTHY COMPTON v. ST FRANCIS MEDICAL CENTER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The trial court dismissed Dorothy Compton's lawsuit against her employer, St. Francis Medical Center, on the day trial was set to begin.   Compton unsuccessfully sought to have the dismissal order vacated and appeals the court's denial of relief.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings before April 30, 2010

In 2008 Compton sued St. Francis for race, gender and age discrimination, retaliation, harassment, and intentional infliction of emotional distress.   The trial court set the trial for April 19, 2010, with a final status conference on April 12, 2010.   A summary judgment motion, however, remained pending until April 14, 2010, and the final status conference was reset for April 26, 2010.

On April 23, 2010, the trial court posted on its website the subjects for discussion at the final status conference, one of which was whether Compton had posted jury fees and the potential effect of a failure to do so.   Compton paid her jury fees the same day.

At the final status conference on April 26, 2010,¹ St. Francis argued that Compton had waived her right to a jury trial.   The court set an order to show cause hearing regarding the jury trial issue for April 28, the first day of trial.

On April 28, the court trailed the trial by one day.   On April 29, 2010, the court heard argument on the jury waiver issue;  found that St. Francis had established that it would suffer prejudice if Compton were to be permitted to proceed with a jury trial despite her failure to timely post jury fees;  and ruled that the trial would be a bench trial.   After resolving remaining pretrial matters, the court advised the parties that opening statements would commence the following morning at 11:00 a.m. Compton's counsel, Gloria Dredd Haney, stated that she was not ready to proceed because when she belatedly subpoenaed her witnesses, she had designated May 3 as the date to appear.   The court responded, “We can take your client tomorrow.”   Haney said, “That's not what I plan to do.”   The court said, “Well, then, you'll have to rest.  [¶] Court's in recess in this case until tomorrow morning at 11[ ] o'clock.”

B. April 30, 2010

On the morning of April 30, 2010, neither Compton nor Haney appeared for trial.   The court stated, “Well, we apparently received a telephone call for Ms. Haney, says she called the clerk's number at about 10:15 or 10:20 this morning.   It didn't come through on the clerk's line.   She says she called, she says she left a voicemail informing the clerk, not anybody else, by voicemail that she has filed a petition for a writ of mandamus with the Second District.   And so I have told her that I'm going to call the case for trial at 1:30.   She needs to be here at 1:30 with conformed copies of whatever it is she filed.”

In the afternoon session, the court called the case and neither Compton nor Haney was present.   At 1:55 p.m. the court played Haney's three voice mail messages for the record.   In the first message, Haney said in relevant part, “I'm calling the court because today I filed an application for stay pending ruling [on the] petition for writ of mandate, and I filed a writ of mandate, and with permission I am requesting an immediate stay.   You will be served with the documents today;  and when I talked to the clerk of the appellate court, I understand that the court may even contact Judge Barry today.”

In the second message, Haney asked the clerk to “give me a call to let me know that you received this message and the documentation—and/or the documentation.   This is kind of important because I will not be appearing because of the stay.   So if you'll let me know about your notice regarding the motion for stay of writ, I would appreciate it.”   The court put on the record that the clerk had spoken to Haney after this phone message, and that “she told Ms. Haney personally that Ms. Haney was expected to be here at 1:30, that the court would call the trial at 1:30, and that she was supposed to be here, was told to be here with conformed copies of the papers that she filed with the appellate court, and she was told that the case would be called for trial at 1:30.”

The court then played the third message, left at 11:30 a.m.:  “This is Gloria J. Haney․  I am unable to make it there by the time I was told that I had to be there.   I cannot be there by 1:30, and so I'm asking that the court does not dismiss my case outright, but at the very least issues an order to show cause why I am not able to appear so I'll have an opportunity to explain.”

The court observed, “Ms. Haney doesn't tell us why she can't be here.   She knows she's speaking on voicemail.   She didn't tell us that the stay had been issued, she didn't tell us the appellate case number, she didn't tell us the number of the clerk or what division it was filed in.   She didn't tell us what the particular problem with her or her client that prevented them from being here, even though they were given effectively two hours' notice.   And she was—this was a case that was scheduled to start on trial on Wednesday, and we were going to be in trial.   So it's not as if she should have had anything else scheduled.”

St. Francis requested a dismissal with prejudice under Code of Civil Procedure 2 section 581, subdivision (d), based on Compton's abandonment of the case, or, in the alternative, a dismissal without prejudice under section 581, subdivision (b)(5).   Counsel for St. Francis argued that Haney had said she was unprepared to proceed, and that in light of Compton's many failures to act in a timely manner during the pretrial proceedings, Haney's failure to appear constituted an impermissible attempt at obtaining a continuance that would otherwise be unavailable.

The trial court agreed with St. Francis's assessment of Haney's conduct and granted the dismissal with prejudice under section 581, subdivision (d), or, alternatively, without prejudice under section 581, subdivision (b)(5).   The court commented, “So yesterday afternoon Ms. Haney, counsel for the plaintiff, I think, finally came to realize that the dilemma that she had—she found herself in.   She was unprepared and was trying at the last minute to have the court cure her mistakes or tactical errors or misjudgments in her preparation for trial, because she realized that perhaps for the first time yesterday afternoon that she had not even served a notice to attend or notice to produce documents on defendants, had not subpoenaed any witnesses.   I think that came up when I asked her if she had subpoenaed any of the witnesses, and she realized she hadn't.   And when I had a dialogue with her—with her and she said she couldn't get them until Monday ․ and so therefore she wouldn't be able to go to trial today.   I said she could call her own witness, her client.   And she said something to the effect that that wasn't the plan, or she didn't want to do it that way.  [¶] And I think at that point I just said we are in recess until tomorrow morning, 11[ ] o'clock.   It was pretty clear when we recessed yesterday that I intended to call the case at 11[ ] o'clock, and plaintiff was going to have to start after opening statements, whether or not she had subpoenas outstanding or not.   I think I said she had to rest if she didn't call witnesses today.  [¶] So I think this writ step, if it happened, was just a tactical ploy, and I think what Ms. Haney is doing is trying to game the system, to try, in effect, to get a de facto continuance, which is completely unfair․  [D]uring that entire time [leading up to trial] it was pretty clear that Ms. Haney was not prepared to go forward.”

The court continued, “The fact that Ms. Haney called us today and didn't appear, didn't bring the documents, didn't show that anything was filed, didn't give us any information that would assist the court in trying to find out what the appellate writ panel has done with the application for immediate stay, and then didn't come herself at 1:30 without any explanation whatsoever, suggests to the court that this is just a waste of time, and that Ms. Haney is engaged in bad faith litigation tactics to the prejudice of the system, prejudice of the court, and prejudice of the defendants, who have got all their gear and equipment, two attorneys, and are probably ready, willing to go with witnesses if they need to do so.  [¶] For those circumstances and those reasons the court's dismissing the case with prejudice, and if it's appropriate, without prejudice for the reasons stated.”

By order of May 26, 2010, the court stated more fully its reasons for dismissing the action:  “Plaintiff's pattern of conduct was significant to the Court in reaching its decision on Defendant's motion to dismiss, namely, Plaintiff's failing to file pre-trial papers required by Local Rule 7.9(h) in a timely fashion, failing to post advance jury fees as required by statute, failing to file timely opposition to Defendant's motions in limine, failing to serve an expert witness disclosure as required by the Code of Civil Procedure, failing to serve a notice to appear or otherwise subpoena witnesses expected to testify, and ultimately failing to appear for trial at 11:00 a.m. on April 30th, and again failing to appear for trial at 1:30 p.m., despite the Court's express order to be present.   Based upon Plaintiff's record of noncompliance with procedural obligations, notwithstanding an extended period when the trial's commencement was imminent, and the reality that a number of the Court's pre-trial evidentiary rulings were adverse to Plaintiff, it was evident that Plaintiff was unprepared or unwilling to proceed to trial, and for that reason abandoned her case or deliberately decided not to appear for trial.”

C. Section 473 Motion

Compton moved to set aside the court's May 26 dismissal order, and she also filed a motion entitled, “Plaintiff's [Code of Civil Procedure Section] 473(b) Notice & Motion for Reconsideration of Court's May 26, 2010, Order Dismissing Plaintiff's Action․”  The motions were supported, inter alia, by declarations by Compton and her counsel.³

In the portion of Compton's section 473 motion concerning the dismissal of the action, Compton argued that the case should not have been dismissed under section 581, subdivision (d) for abandonment because she had not abandoned her case:  Counsel “was actively involved in seeking equitable relief from the appellate court because no other adequate relief was available to avoid having a bench trial.”   Compton asserted that notice had been given to the court clerk as to why neither Compton nor Haney would appear in court on April 30, 2010.   She also asserted that the case should not have been dismissed under section 581, subdivision (b)(5) for a failure to appear because “[t]here was no failure to appear.”   The court, she argued, had been informed of the reason there was no appearance on April 30, 2010, but did not mention the writ petition or request for a stay in the dismissal order.   Finally, Compton disputed each of the items listed by the trial court in its May 26 dismissal order as part of her “pattern of conduct.”

In a supporting declaration, Compton declared that Haney had told her that they could “file for a motion for temporary stay of the matter so that a bench trial could not go forward and file a petition for writ of mandate, asking the appellate court to instruct the superior court to let me go forward with a jury trial.”   Haney stated that in her experience, motions for stays were temporarily granted while the appellate court reviewed the request, and that under the circumstances, Compton “did not have to go to the court the next day.”   Haney confirmed in her declaration that she had “told [her] client not to appear for trial because of the motion for [a] stay.”

In her declaration Haney disputed the account of events of April 30, 2010, as given by the court.   She claimed that she had sent the writ petition and stay motion out for filing on the morning of April 30, 2010,⁴ and that at approximately 10:00 a.m. she had left a phone message stating that neither she nor Compton would appear for trial due to the filing of the writ petition and stay request.   She contended that she left her legal assistant's phone number as contact information and did not return to the office because she had stayed up all night the night before working on the writ petition.   According to Haney, she left another message with the same information at approximately 10:30 a.m.

At 11:00, Haney declared, the court clerk called.   Haney told her about the writ petition and request for a stay, and asked her to inform the judge.

Shortly before noon, according to Haney's declaration, the clerk called again and said the judge wanted to know the contents of the writ petition.   Haney read the motion to stay and the beginning of the petition to the clerk over the phone, and waited while the clerk spoke with the judge.   When the clerk returned, she asked whether the judge would receive a copy of the appellate documents, and Haney confirmed that he would.   She asked if Haney could get to the court by 1:30 p.m., and said that the judge “would ask opposing counsel about a motion for dismissal if [she] could not.”   Haney declared that she said that she “was not in a position to come to court” after having been up all night working.  “At no point in the conversation did she state I was ordered to appear at 1:30 p.m.,” declared Haney.

Haney also denied that her client had abandoned the case or that there was a failure to appear.   She disputed the pretrial conduct listed in the court's dismissal order.   At the close of the declaration, Haney declared that Compton “should not have to suffer because the court dislikes the decisions made by her counsel.   There was no abandonment of the case.   There was no[ ] deliberate decision not to appear at trial when neither plaintiff nor her counsel had been expressly or otherwise ordered to appear at trial.   There was a genuine and good-faith decision [to] seek relief from the appellate court.   If the seeking of relief was wrong and if the relief should never have been sought, then that responsibility lies with me.   This case should also not be dismissed because of errors in the facts.”

After oral argument, the trial court denied Compton's motions on September 1, 2010.   With respect to section 473, subdivision (b), the court explained, “Plaintiff failed to establish that the dismissal of the case was the result of her attorney's mistake, inadvertence, surprise or neglect (whether excusable or inexcusable).   As the Court noted in its May 26th Order, ‘[I]t was evident that Plaintiff was unprepared or unwilling to proceed to trial, and for that reason abandoned her case or deliberately decided not to appear for trial.’   Thus, the Court already determined that the conduct leading to dismissal was not mere neglect.   Rather, Plaintiff's decision not to appear for trial on April 30, 2010 appears to have been a strategic, tactical decision on the part of her counsel.”

D. Appeal

Compton filed a notice of appeal on September 27, 2010, describing the appeal as being from the orders of May 27, 2010, and September 1, 2010.   St. Francis moved for, and Compton did not oppose, a partial dismissal of the appeal;  and this court dismissed the appeal of the trial court's May 2010 order of dismissal.

DISCUSSION

Compton's briefing does not comply with the California Rules of Court, rule 8.204(a)(1)(B), in that rather than providing a summary of significant facts in the record and then stating each point of argument under a separate heading summarizing the point, she has combined her arguments and her recitation of the facts into a section more than 30 pages long entitled “Statement of Relevant Facts and of the Case.” Her “Argument” section is a mere seven pages, fails to individually state each point at issue under separate headings, and consists primarily of disputes she has about the contents of and cases relied on in defendant's opposition to her motions for relief from the dismissal.   To the extent that we are able to identify issues raised on appeal, we address them individually below.

I. Claims Pertaining to Dismissal Order

Compton contends that the court need only review the transcript of the proceedings in the trial court “to determine that the involuntary dismissal with prejudice is void and contrary to the law and the involuntary dismissal without prejudice is also void because of failure to conform to the constitutional guarantees of due process of law.”   She claims that the reasons for dismissing the case were “unknown to plaintiff, were prejudicial, were based on incorrect facts, [ ] incorrect law, and only purportedly occurred,” and argues that the order dismissing the case must be reversed.   She argues that the dismissal was void on constitutional grounds.

Compton did not oppose St. Francis's motion to dismiss her appeal of the dismissal order itself, and her appeal of the dismissal has been dismissed.   Whether the court properly dismissed the action is outside the scope of the appeal.

II. Section 473

Section 473, subdivision (b) provides for two types of relief, commonly differentiated as discretionary and mandatory, from certain prior actions or proceedings in the trial court.   Compton argues on appeal that the trial court erred by denying relief from the dismissal under both provisions.

A. Mandatory Relief

“Under the mandatory relief provision, ․ upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’ ”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616 (Leader ).)   Applications seeking relief under the mandatory provision of section 473 must be “accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).)

Conspicuously absent from Haney's declaration that was submitted to the court in support of the section 473 motion was any admission of fault.   Instead, Haney devoted pages to defending her actions in the weeks prior to trial;  contesting the court's account of the events on the day of trial and its bases for dismissing the case;  claiming that she was never ordered to appear at court on the first day of trial;  insisting that she had not abandoned the case;  blaming opposing counsel for seeking a dismissal;  and asserting that “[t]here was no failure to appear.”   Toward the end of the declaration she asserted that her client “should not have to suffer because the court dislikes the decisions made by her counsel,” and insisted once more that “There was no abandonment of the case.   There was no[ ] deliberate decision not to appear at trial when neither plaintiff nor her counsel had been expressly or otherwise ordered to appear at trial.”   Haney closed her declaration with the exhortation, “There was a genuine and good-faith decision [to] seek relief from the appellate court.   If the seeking of relief was wrong and if the relief never should have been sought, then that responsibility lies with me.”

This declaration “contains no real concession of error on” Haney's part.   (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609 (State Farm ).)   Nowhere in the declaration did she acknowledge fault in the manner in which she handled the filing, the request for a stay, and her communication with the trial court.   To the contrary, Haney maintained that she made decisions about prosecuting her case and that the trial court was incorrect to consider them abandonment or a decision not to appear.   Her token acceptance of responsibility if the decision to seek appellate intervention “was wrong” fails to constitute a meaningful admission of error because the filing of the writ petition was not the reason the court dismissed Compton's case—it was Haney's failure to appear for trial in the absence of a stay that prompted the dismissal.   Haney's declaration lacked the “straightforward admission of fault” by counsel that is a prerequisite for relief under the mandatory provision of section 473.  (Id. at p. 610;  see also Solv–All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010, 1012 [relief under mandatory provision available when attorney “admits” responsibility and acknowledges that his or her neglect, even if he or she believes it to have been excusable, may in fact be determined by the trial court to have been inexcusable].)

On appeal, Compton contends that she did not appear at trial “because of her attorney's instructions not [to] attend based upon her attorney's mistaken belief that the trial court would not go forward until there was a decision regarding the status of the motion to stay and petition for writ.”   Compton provides no citation to the record to support this assertion.   In her declaration supporting the section 473 motion, Haney never admitted that she erred in advising Compton not to attend the trial, nor did she acknowledge a “mistaken belief” on her part.   Because the section 473 motion was not “accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect” (§ 473, subd. (b)), the trial court did not err in concluding that Compton had failed to establish that the dismissal was the result of attorney's mistake, inadvertence, surprise, or neglect.

B. Discretionary Relief

Under the discretionary relief provision of section 473, subdivision (b), “on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.”  (Leader, supra, 89 Cal.App.4th at pp. 615–616.)   We review the trial court's ruling under this provision for an abuse of discretion.  (State Farm, supra, 90 Cal.App.4th at p. 610.)

Compton contends the trial court abused its discretion in denying relief under the discretionary provisions of section 473 because (1) Haney had determined through research that a petition for writ of mandate was the preferred method for seeking restoration of the jury trial right after a declared waiver;  (2) Haney expected, based on her experience, that the Court of Appeal would issue a stay;  and (3) the trial court was “fully informed as to the status of what was happening.”   She also contends that the court was misled by St. Francis, confused about the posture of the case, and that it changed its reason for dismissing the case.

There was no abuse of discretion here because Compton did not demonstrate that the dismissal was taken against her due to her counsel's mistake, inadvertence, surprise, or excusable neglect. (§ 473, subd. (b).)  First, Haney's conduct did not appear to be inadvertent or based on mistake.   According to her declaration, she decided the day before trial that she would not appear in court the following day.   She knew the writ petition and stay application would not be sent out for filing until the morning that trial was to begin, and she decided to stay home nonetheless.   The trial court did not abuse its discretion in concluding that there was no mistake or inadvertence in the deliberate and advance choice to send off a request for a stay with an attorney service on the morning of trial and then to treat the application for a stay as though it had already been granted by this court.

Even if Haney's decision can be characterized as neglect, there was nothing excusable about it.   The test of whether neglect was excusable is whether a reasonably prudent person under the same or similar circumstances might have made the same error.  (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)   No reasonable person would conclude that the mere dispatch for filing of a writ petition and request for a stay on the morning of trial somehow relieved counsel and a party of the obligation to appear for trial.   A requested stay is not the same thing as an order for a stay, as is illustrated by the facts here:  ultimately, Haney did not succeed in obtaining a stay that day because she failed to submit her petition in proper form and it was rejected.   Counsel did not even ensure that the trial court had a copy of the petition and stay request or the information that would permit the court to investigate the status of the petition and stay request.

Compton claims on appeal that Haney's error was “believing the filing of a motion for stay and petition for mandate, based upon California case law and prior experience, was appropriate before a bench trial.”   This contention is meritless because it was not Haney's resort to the appellate court, but her behavior in the trial court, that led to the dismissal:  Had Haney properly filed the petition and stay request, brought conformed copies to the court, and appeared in court when she was ordered to do so, rather than sending off the petition with a filing service and leaving the office for the day, it is inconceivable that the case would have been dismissed.   There was no attorney error in seeking pretrial writ relief of the court's determination that Compton had waived her right to a jury trial—and the fact that Compton sought appellate relief was not a basis for the dismissal.

Furthermore, the trial court concluded that Compton's counsel's action appeared to be intentional conduct, and that conclusion is amply supported by the record.   Compton's counsel had declared herself to be without witnesses the day before trial, but she balked when the court instructed her to begin with her client.   Other pretrial actions and statements also convinced the trial court that Haney was unprepared.   Moreover, the trial court had the opportunity to observe Haney's demeanor in the trial court and to listen to the tone of her messages.   Under the circumstances, it was reasonable for the trial court to suggest that Haney's actions were deliberate rather than inadvertent.   In this court, Compton has provided no reasonable basis for disturbing the trial court's reasonable inference of deliberate conduct.  “Designing conduct is not mistake, inadvertence, surprise, or neglect.”  (Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45.)   The trial court did not abuse its discretion when it denied relief under the discretionary provisions of section 473.

III. Motion to Set Aside the Judgment

Compton claims that the judgment should have been set aside pursuant to section 663, which provides that “[a] judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered,” when there was an incorrect legal basis for the decision or the judgment was not consistent with or supported by the special verdict.   Compton claims that her motion to set aside the judgment should have been granted because the trial court's decision was based on “incorrect and [ ] erroneous facts and law.”   Relief under section 663 was not available to Compton, for even if the court had erred by dismissing the action, no alternate judgment could properly be substituted for the judgment here.   Compton was not asking the trial court to vacate the judgment and enter a different judgment, she was seeking to cause the court to vacate the prior ruling dismissing the action.   This is not a proper function of a section 663 motion.  (See Payne v. Rader (2008) 167 Cal.App.4th 1569, 1575 (Payne ) [section 663 motion not proper when relief sought was the vacation of a prior ruling on a demurrer and authorization to file further pleadings].)

Section 663 is also inapplicable here because a motion to vacate under section 663 is a “ ‘remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.’  [Citation.]”  (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14.)   Judgments not resting on facts established by evidence, such as judgments arising from a stipulated judgment, a summary judgment, or a dismissal after a successful demurrer, are not within the scope of section 663.  (Ibid.;  Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203;  Payne, supra, 167 Cal.App.4th at p. 1574.)   Compton has not established any basis for relief here.

IV. Section 1008

Without any citations to the record or to supporting authority, Compton asserts that in denying her motions to vacate the judgment and for relief from the dismissal, the court “erroneously relied” on section 1008, on which she had not depended in her moving papers.   We have examined Compton's moving papers, and although she did not invoke section 1008, the motion was entitled a motion for “reconsideration.”   As Compton acknowledges, “[m]otions for reconsideration are regulated by section 1008, subd[ivision] (a).”   We cannot fault the trial court for addressing not only the section 473 elements of her motion, but also examining whether reconsideration was proper under section 1008.   Even if Compton did not intend to invoke section 1008 in her motion when she sought reconsideration, she has not identified any way in which the trial court's abundance of caution prejudiced her:  Compton's section 473, subdivision (b) claims were thoroughly addressed and rejected in the order as well.

DISPOSITION

The judgment is affirmed.   Respondent shall recover its costs on appeal.

We concur:

FOOTNOTES

FN1. Compton did not provide separate copies of the reporter's transcript of numerous court proceedings from April 26 through April 30, but instead relies on appeal on copies of transcripts that were attached as exhibits to an amended declaration she filed in the trial court on August 5, 2010.   The trial court, however, declined to consider this declaration because it was not timely filed.   Because both parties rely on these transcripts and raise no objection to their inclusion in the record, we overlook the procedural anomaly here..  FN1. Compton did not provide separate copies of the reporter's transcript of numerous court proceedings from April 26 through April 30, but instead relies on appeal on copies of transcripts that were attached as exhibits to an amended declaration she filed in the trial court on August 5, 2010.   The trial court, however, declined to consider this declaration because it was not timely filed.   Because both parties rely on these transcripts and raise no objection to their inclusion in the record, we overlook the procedural anomaly here.

FN2. All further statutory references are to the Code of Civil Procedure..  FN2. All further statutory references are to the Code of Civil Procedure.

FN3. It is unclear whether the declarations in the record are meant to support the section 473 motion filed on June 11, 2010, the motion to set aside the dismissal filed on June 10, 2010, or both motions.   For purposes of review, we treat them as supporting the section 473 motion..  FN3. It is unclear whether the declarations in the record are meant to support the section 473 motion filed on June 11, 2010, the motion to set aside the dismissal filed on June 10, 2010, or both motions.   For purposes of review, we treat them as supporting the section 473 motion.

FN4. In a later declaration filed in support of her reply memorandum, Haney acknowledged that no stay was ordered and that the petition was not filed on April 30, 2010, because she had failed to “properly file[ ] all of the required papers” in the Court of Appeal.   On April 30, Haney “was in the process of compiling additional papers which should have been submitted to the appellate court but had not bee[n].”.  FN4. In a later declaration filed in support of her reply memorandum, Haney acknowledged that no stay was ordered and that the petition was not filed on April 30, 2010, because she had failed to “properly file[ ] all of the required papers” in the Court of Appeal.   On April 30, Haney “was in the process of compiling additional papers which should have been submitted to the appellate court but had not bee[n].”

PERLUSS, P. J. WOODS, J.