KRIEGLER, J.
Plaintiff and appellant Val P. Shulman, M.D., appeals from the judgment entered after the trial court granted summary judgment in favor of defendant and respondent Sousanna Lacktchouk in Shulman's action to set aside a prior default judgment. Shulman argues the default judgment in the prior proceeding was void, at least in part, because Lacktchouk's pleading in the prior action failed to allege damages as required by Code of Civil Procedure section 425.10.
On May 16, 2006, Shulman, represented by his son, filed an action against Lacktchouk for damages for breach of contract. On July 16, 2006, Lacktchouk filed a cross-complaint alleging eight causes of action, including one for invasion of privacy. The cross-complaint did not contain a demand for damages, but did include a prayer for punitive damages. After Shulman ignored two orders to comply with discovery, the trial court, on May 11, 2007, ordered Shulman's complaint dismissed for failure to prosecute, granted monetary sanctions, and struck Shulman's answer to the cross-complaint. Lacktchouk served Shulman with statements of damages pursuant to sections 425.11 and 425.115 on March 12, 2007, specifying amounts of special, general, and punitive damages. Lacktchouk filed a default request on October 16, 2007. The court entered a default judgment in favor of Lacktchouk in the amount of $268,128 on November 13, 2007.
This court affirmed an order denying a post-judgment protective order sought by Shulman in proceedings stemming from the default judgment.
Shulman filed a complaint seeking to set aside the prior default judgment and for declaratory relief against Lacktchouk on October 8, 2008. The complaint alleged the filing of the prior action and the cross-complaint, that the cross-complaint did not pray for a specific amount of damages, and that Lacktchouk never served a statement of damages on Shulman pursuant to section 425.11. The complaint set forth the history of the prior action, essentially as described above.
During the prior litigation, Shulman would ask his attorney about the status of the action. Counsel never reported any problems and never advised Shulman about service of discovery requests or the default judgment obtained by Lacktchouk. In July or August 2008, Shulman's accountant notified Shulman that he received a subpoena duces tecum for Shulman's financial records. Shulman checked the superior court's website and saw that a default had been entered against him. This was his first notice of the judgment. Shulman sent an email to his counsel asking why there was a default. Counsel said he would investigate but never responded to Shulman.
In the first cause of action to set aside the judgment in the prior action, Shulman alleged the default judgment of $268,128 was void to the extent it exceeded the amount prayed for in the complaint or in a statement of damages pursuant to section 425.11. Lacktchouk never alleged specific amounts of damages in her cross-complaint and never served a statement of damages under section 425.11, rendering the judgment void under section 580. Shulman had no remedy at law because he did not discover the existence of the default judgment until after expiration of the time to appeal, seek a new trial, or obtain relief under section 473. Shulman requested the court to use its inherent power to set aside a judgment where there has been a total abandonment by an attorney and the attorney's misconduct is so great that it amounts to positive misconduct. Shulman's counsel in the prior action had failed to respond to discovery and did not tell Shulman about the discovery order, sanctions award, or judgment, conduct so extreme that as a matter of equity the judgments on the complaint and cross-complaint in the prior action should be set aside.
The second cause of action, for declaratory relief, alleged there was an actual controversy between Shulman and Lacktchouk as to the validity of the prior action.
Lacktchouk filed an answer denying that Shulman was entitled to relief and asserting 13 affirmative defenses.
Lacktchouk filed a motion for summary judgment, arguing the current action was barred by the prior valid judgment, there was no actionable case or controversy to support the declaratory relief cause of action, and Shulman's claim of abandonment by counsel was unsupported by the facts and the law.
Lacktchouk's motion set forth the procedural history of the prior action, again as described earlier in this opinion. She argued that the premise of Shulman's current action is incorrect. Lacktchouk did, in fact, serve a statement of damages under section 425.115 on March 12, 2007, listing damages far in excess of those awarded in the prior action. The statement was required because she sought punitive damages. Pursuant to section 425.115, subdivision (a), service of the statement of punitive damages also satisfies section 425.11.
Shulman did not allege facts in his complaint to show a total abandonment by his lawyer as described in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 (Carroll). The record shows that Shulman's son continued to represent him in the prior action.
Shulman filed an opposition to the motion for summary judgment and a separate statement of disputed material facts. He stated in a declaration that the statement of damages for punitive damages was never served on him. Counsel never told him about any problems, that discovery requests had been served, that he failed to respond to discovery, and that judgments were entered against him. Shulman learned of the judgment on the superior court website. Because counsel abandoned him, Shulman is entitled to relief from the default judgment.
He further argued that the cross-complaint did not allege a dollar amount of damages, and a personal injury statement of damages under section 425.11 does not legally amend a complaint alleging non-personal injury causes of action. The fact that Lacktchouk filed a statement of punitive damages under section 425.115 did not cure the defect in the pleading of the cross-complaint. In any event, the statement of damages was untimely because it was served before the events on which the default was based. He also argued that in the prior appeal, this court had reversed the judgment in 2009 to the extent it exceeded $25,000.
The trial court ruled that the undisputed facts showed that Shulman was served by mail with the statement of damages pursuant to sections 425.11 and 425.115. There is a presumption of receipt of mail under Evidence Code section 641, which Shulman had not rebutted. The court noted that Shulman's attorney did not file a declaration stating that he did not receive the mail.
Shulman made the argument that the statement of damages should have been served before the discovery violation that was the basis for the default judgment. The trial court found that this makes no sense—Lacktchouk had no reason to serve a default demand until after the default. All that is required is service within a reasonable time of the default. Service on March 12, 2007 was made within a reasonable amount of time before the default on the cross-complaint on April 10, 2007.
The trial court found that Lacktchouk's statement of damages under section 425.11 was proper in this case, even thought the cross-complaint had not set forth a demand for damages, because the non-personal injury claims were closely tied to the personal injury claims, particularly the claim of invasion of privacy. In its detailed analysis, the court reasoned as follows:
"The cross-complaint alleged causes of action for: (1) Violation of [Business & Professions Code section] 17200; (2) Unjust enrichment; (3) Violation of Civil Code [sections] 2223 and 2224 (involuntary trusts); (4) Intentional interference with contract; (5) Intentional interference with prospective economic advantage; (6) Negligent interference with prospective economic advantage; (7) Conversion (of fees from MediCal and Medicare for Lachtchouk's services); and (8) Invasion of privacy. LACHTCHOUK alleged that, throughout the course of her business relationship with SHULMAN, he interfered with her peaceful enjoyment of the office premises and with her contractual, business and prospective business relationships by, among other things, using loud abusive language in front of her patients, making disparaging remarks about her, attempting to convince her patients to make appointment[s] with him by making derogatory remarks about her skill and reputation as a nurse, turning away walk-in patients despite being informed that LACHTCHOUK could provide services to those patients, barging unannounced into treatment rooms, etc. (Cross-complaint, ¶14 and subparts.) LACHTCHOUK also alleged that cross-defendants continued to interfere with her business relationships by opening mail addressed to her containing private, personal and/or financial information. (Cross-complaint, ¶15.) As a result of his conduct, LACHTCHOUK terminated her business relationship with cross-defendants. Nevertheless, cross-defendants continued to fraudulently submit bills to MediCal, Medicare and other insurance carriers under LACHTCHOUK's provider numbers for medical services provided by her, and then fraudulently retaining the fees collected. [¶] The Court finds that, in light of the statements of damages served pursuant to CCP §§ 425.11 and 425.115, the default judgment is not void. Due to the invasion of privacy cause of action, LACHTCHOUK was procedurally required to serve a statement of damages and did so, seeking, among other things, $l,000,000 in emotional distress damages, $1,000,000 for invasion of privacy damages, $2,000,000 for loss of her good reputation in the community, etc. Those amounts far exceed the total ultimately awarded in the default judgment—$268,128. SHULMAN's argument that the [Code of Civil Procedure section] 425.115 statement of damages for punitive damages failed to cure LACHTCHOUK's defective pleading is inapposite since a [Code of Civil Procedure section] 425.11 statement of damages was also served."
The trial court ruled there was no evidence that Shulman had been abandoned by his attorney. Prior counsel's failure to comply with discovery was not the type of positive misconduct that establishes client abandonment. There was no evidence that Shulman's attorney, his son, effectively terminated the attorney-client relationship. Shulman's remedy is a malpractice action.
Shulman makes multiple arguments challenging the trial court's order granting summary judgment. We discuss the issues in the order presented.
"Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, the appellate court independently determines whether, as a matter of law, the motion for summary judgment should have been granted. `The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
"A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) In order to obtain a summary judgment, `all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . . Although he remains free to do so, the defendant need not himself conclusively negate any such element . . . .' (Aguilar, supra, 25 Cal.4th at p. 853.)
"Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd. (p)(2).) If the plaintiff does not make this showing, summary judgment in favor of the defendant is appropriate." (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 125.)
A complaint or cross-complaint shall contain a demand for relief, and "[i]f the recovery of money or damages is demanded, the amount demanded shall be stated." (§ 425.10, subd. (a)(2).) However, if the "action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated . . . ." (Id., subd. (b).)
"When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought." (§ 425.11, subd. (b).) "If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken." (Id., subd. (c).) "If a party has not appeared in the action, the statement shall be served in the same manner as a summons." (Id., subd. (d)(1).) Where a default results from the striking of a party's pleading due to a discovery violation, the statement of damages must be served as if the party had not appeared in the action. (Greenup v. Rodman (1986) 42 Cal.3d 822, 825-829 [when a default is entered based on a discovery violation, relief to the plaintiff in a default judgment may not exceed that demanded in the complaint].)
A party seeking punitive damages on a default judgment must serve the opposing side with notice of the amount of punitive damages being sought. (§ 425.115.) The statement of punitive damages may be combined with the statement of damages under section 425.11, subdivision (e). "A plaintiff who serves a statement on the defendant pursuant to this section shall be deemed to have complied with Sections 425.10 and 580 of this code and Section 3295 of the Civil Code." (§ 425.115, subd. (d).)
"The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles." (§ 580, subd. (a); Greenup v. Rodman, supra, 42 Cal.3d at pp. 826-827.)
Shulman first argues that the default judgment is void to the extent it exceeds Lacktchouk's $55,000 demand in the statement of damages for the invasion of privacy cause of action, which was the only personal injury allegation in the cross-complaint. He reasons it is undisputed that the cross-complaint did not include any specification of damages for the seven non-personal injury causes of action as required by section 580, and to the extent the $268,128 default judgment exceeds $55,000, it is void.
As set forth above, the trial court ruled that the failure to allege damages as to the seven non-personal injury causes of action in the cross-complaint was not fatal under section 580 because those causes of action were so closely related to the remaining cause of action—for invasion of privacy—that Lacktchouk's section 425.11 statement of damages supported the default judgment.
A complaint must contain a statement of damages as to causes of action not involving personal injury. (§ 425.10.) Case law has recognized, however, that in some instances the statement of damages required for personal injury causes of action must also include the damages for closely related non-personal injury causes of action. (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 927, 930 [causes of action for trespass and conversion were so closely related to causes of action for assault and infliction of emotional distress that all needed to be covered by the § 425.11 statement of damages].) The trial court applied the rule set forth in Jones in finding that all of Lacktchouk's causes of action were closely related and were therefore properly set forth in the statement of damages submitted in support of the default judgment.
In order to determine if the causes of action were so closely related to the invasion of privacy cause of action, we look to the allegations of Lacktchouk's cross-complaint. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 430, 432 [housing discrimination cause of action was for personal injury based on allegation in complaint alleging plaintiffs' suffered emotional distress].) We now set forth a summary of her factual allegations.
In her cross-complaint, Lacktchouk alleged she was a nurse practitioner who rented office space from May 2000 to May 2006 at excessive monthly rates from Shulman. She provided medical services to Medi-Cal and Medicare patients. Shulman provided receptionist and medical billing services. Shulman and other defendants affiliated with him interfered with Lacktchouk's peaceful enjoyment of the premises and with her relationships with her clients by using loud and abusive language in front of her patients, making false and disparaging comments about her skills and her character. Shulman attempted to convince patients who contacted the office for appointments with Lacktchouk to make appointments with him, by making false and derogatory statements about her skills and her character. Shulman turned away patients who came into the office to see Lacktchouk, although she was ready and able to treat them. Shulman barged unannounced into the rooms where Lacktchouk was treating patients, using loud and abusive language to make false and derogatory comments about her. Shulman opened her mail containing personal and financial information, keeping some, in violation of federal law and her instructions to deliver her mail unopened. Based on this conduct, Lacktchouk was forced to terminate her business relationship with Shulman. Shulman continued to submit bills for payment under his provider number for services performed by Lacktchouk. Shulman continues to utilize her prescription pads and make disparaging remarks about her skills and character.
We agree with the trial court's analysis demonstrating the non-personal injury causes of action were closely related to the invasion of privacy cause of action. As our summary of allegations reveals, the invasion of Lacktchouk's privacy was interwoven with all of the various causes of action. We conclude, as a matter of law, the non-personal injury causes of action were closely related to the invasion of privacy cause of action and the statement of damages under sections 425.11 and 425.115 provided the required notice to support a default judgment.
Shulman's argument that the cause of action for invasion of privacy was not closely tied to the non-personal injury causes of action is made without analysis of the specific allegations in the cross-complaint. Shulman argues in conclusory fashion that "the claims are in separate causes of action and the remedies for each claim are distinct" and "[n]othing in a claim for invasion of privacy gives notice that plaintiff is seeking damages based on excessive rent or loss of income based on a breach of contract." That the claims were in separate causes of action adds nothing to the discussion, as that is a given in this case—no one disputes that there were eight different causes of action. What Shulman fails to acknowledge, and what was properly determined by the trial court, is that Shulman's pattern of conduct, including those causes of action involving monetary loss, were all alleged to be the result of a pattern of conduct in which Shulman took advantage of Lacktchouk, invaded her privacy in the process, and caused emotional distress.
Shulman further contends that Lacktchouk's declaration in support of the default judgment sought only $55,000 in damages for the emotional distress, which should be the outer limit of his liability, rather than the $268,128 awarded in the default judgment. The argument misses the point. The issue is not what damages were awarded on any particular cause of action. Instead, the issue is whether Shulman received notice of the limits of his liability should a default judgment be entered. The statement of damages included notice of the amounts sought for both general and specific damages, as required. (See Schwab v. Rondel Homes, Inc., supra, 53 Cal.3d at p. 435 [statement of damages under § 425.11 must set forth the amount of special and general damages sought to be recovered].) Shulman received that notice, and the damages awarded were less than the amount sought.
Shulman also argues that no damages were awarded in the prior action for emotional distress. He reasons the default judgment of $268,128 was calculated as the total of what Lacktchouk sought for economic damages for excessive rent ($52,624.80), plus loss of income ($215,503.20). Shulman's calculation as to how damages were allocated is beside the point. Because the causes of action were closely related, the section 425.11 notice provided by Lacktchouk was required for the entire cross-complaint, and the amount of the default judgment did not exceed that set forth in the statement of damages.
In his reply brief, Shulman argues for the first time that this court ruled in a previous appeal dealing with a judgment debtor examination that the judgment was partially void and could be reduced to the jurisdictional limit of $25,000. "We refuse to consider the new issues raised by [Shulman] in his reply brief. `Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) `Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.' (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) `"Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before."' (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)" (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
Moreover, the opinion in the prior appeal did not hold that the default judgment was partially void, as it only considered whether the default judgment was at least partially valid. Finding the default judgment valid, at least in part, we held that Shulman's request for a postjudgment protective order was properly denied by the trial court.
Shulman next challenges the order granting summary judgment on the basis that the statement of damages had to have been served before the act that lead to the default—in other words, the statement was defective because it was not served prior to the time Shulman violated the discovery order and his complaint was stricken. According to Shulman, the statement of damages must be served "before the occurrence of any event of default" under section 580.
The trial court first compelled discovery by minute order dated January 25, 2007. The order confirming the January 25 order was signed on March 2, 2007. Discovery responses were due by February 9, 2007. The statement of damages was served on March 12, 2007, more than a month after the discovery due date.
As he did in the trial court, Shulman cites no authority for his argument, other than a generic reference to section 580,
In any event, the trial court correctly determined that the contention was devoid of merit as Shulman had reasonable notice of the potential damages. First, there would have been no reason for Lacktchouk to file a statement of damages until after the event leading to the default. Second, Shulman had adequate notice of the damages before the default judgment was entered. Shulman's pleadings were stricken after sanctions were imposed for his failure to comply with discovery orders dated January 25, 2007, and April 10, 2007. Lacktchouk served her statement of damages on March 12, 2007. The judgment striking Shulman's complaint and awarding sanctions for the discovery violations was signed on May 11, 2007. The request for default judgment, including the amount of damages sought, was filed on October 16, 2007. The default judgment was signed by the court on November 13, 2007.
The law is settled that a defendant is entitled to notice of damages within a reasonable period of time before a default is entered. (Schwab v. Rondel Homes, Inc., supra, 53 Cal.3d at p. 435; Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1322.) In this case, Shulman had reasonable notice before his default was entered. Moreover, he had notice of the potential damages on Lacktchouk's cross-complaint for seven months before the request for default judgment was filed, an entirely reasonable amount of time under the circumstances of this case.
Shulman contends the trial court erred in ruling that the filing of a statement of punitive damages under section 425.115 cured the cross-complaint's defect for failure to demand compensatory damages. We disagree, because the court did not make the ruling complained of by Shulman.
As discussed above, the trial court ruled that the non-personal injury causes of action were so closely related to the invasion of privacy cause of action that a statement of damages was required for the entire cross-complaint. The court reasoned that the amount of the default judgment did not exceed the amounts in the statements of damages filed by Lacktchouk under sections 425.11 and 425.115. The ruling ascribed to the court by Shulman was never made below.
Shulman argues "there is at least a fact issue as to whether the default judgment is void due to prior counsel's extreme neglect in representing his client," citing Carroll, supra, 32 Cal.3d at pages 897-898. Shulman contends there is evidence establishing that counsel failed to respond to discovery requests and did not comply with discovery orders, and counsel affirmatively misrepresented the situation to him by saying everything was fine. This conduct, Shulman argues, establishes client abandonment that warrants vacating the default judgment.
Shulman's attempt to gain relief on the basis of client abandonment runs into the general rule that an attorney's negligence is imputed to the client. (Carroll, supra, 32 Cal.3d at p. 898.) An exception to the general rule exists where the attorney's neglect is so extreme as to amount to "`positive misconduct'" that "obliterates the existence of the attorney-client relationship." (Ibid.) To bring this principle into play, there must be "a total failure on the part of counsel to represent the client" sufficient to demonstrate that "it would have been unconscionable to apply the general rule charging the client with the attorney's neglect." (Id. at p. 900.) An attorney's gross mishandling of a routine discovery matter does not constitute client abandonment. (Ibid; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 231.) And Carroll cautions that the client abandonment principle "should be narrowly applied, lest negligent attorneys find that the simplest way to gain the twin goals of rescuing clients from defaults and themselves from malpractice liability." (Carroll, supra, at p. 900.)
Shulman's meager showing in opposition to summary judgment falls far short of establishing client abandonment to such a degree as to entitle him to relief from the default judgment in the prior action. Shulman's evidence establishes nothing more than his attorney's failure to comply with discovery obligations and a lack of communication with the client. No detailed description of the conduct of the attorney in the prior action was provided. The minimal showing by Shulman in opposition to summary judgment does not rise to the level of positive misconduct required by the holding in Carroll. Shulman's remedy, if any, is a malpractice action against former counsel.
For the first time in his reply brief, Shulman argues that the trial court's ruling was the product of bias resulting from his ill-fated attempt to disqualify the court under section 170.6. The argument comes too late, not having been raised in the opening brief. (Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 764.) Moreover, our review of the record reveals no hint of bias on the part of the trial court.
The judgment is affirmed. Costs on appeal are awarded to Sousanna Lacktchouk.
I concur:
TURNER, P. J.
MOSK, J., Dissenting
I respectfully dissent.
Shulman sets forth facts that his counsel failed to respond to discovery requests and orders and misrepresented the situation to him. This seems to me to be the type of "`positive misconduct . . . [that] obliterates the existence of the attorney-client relationship.'" (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898, italics omitted.) According to Schulman, he did not even find out a default had been taken against him until efforts began to enforce the judgment.
What constitutes abandonment depends on the facts of a particular action. (Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 205 (Seacall).) The client's due diligence in following up on the case and any prejudice that might result in allowing a case to proceed are facts that must be considered in deciding whether it is equitable to set aside a dismissal based on attorney abandonment. (Ibid.) Thus, in Seacall, the court found that, even though the client was not as vigilant as it should have been, a dismissal should have been set aside because the attorney, other than filing a petition and ordering a transcript, took no action to prosecute the case. (Id. at p. 206.)
Similarly, in Daley v. County of Butte (1964) 227 Cal.App.2d 380, the court found that an attorney's failure to, inter alia, appear at successive pretrial conferences, communicate with the client and opposing counsel, and sign a substitution of attorney constituted abandonment. That same conclusion was reached in an action in which the attorney failed to file an answer and appear for trial, all the while assuring his client that he was taking care of the case (Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347); and a case in which the attorney failed to take any action to prosecute a case after filing the complaint (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725). But in Carroll, supra, 32 Cal.3d at page 900, the California Supreme Court found that the trial court erred in granting relief under Code of Civil Procedure section 473 because the attorney in Carroll—albeit guilty of "grossly" mishandling a routine discovery matter—did not abandon the client. Instead, the attorney propounded and answered discovery, settled the case against one party, and, after the action was dismissed, tried to correct the dismissal.
The facts here approximate more closely the facts in the cases granting relief to the defaulting party. At least there is a triable issue of fact as to whether there was such an abandonment. For that reason, I would reverse the summary judgment. I do not reach Schulman's other contentions.
"(b) Notwithstanding subdivision (a), the following types of relief may not be granted in a limited civil case:
