NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JACKSON, J.
INTRODUCTION
Plaintiff Charlotte Bell (Bell) appeals from an order denying her motion to set aside dismissals entered in favor of defendants Kevin Scroggins (Scroggins) and Inglewood Unified School District (IUSD). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bell filed this action on March 18, 2009. After demurrers and a motion to strike were submitted, Bell filed her first amended complaint on September 22, 2009.
Dismissal as to Scroggins
On September 14, 2009, Scroggins propounded form interrogatories, set one, and special interrogatories, set one, on Bell. On September 22, 2009, attorney Sean Chandra (Chandra) was substituted in as counsel for Bell.
On December 8, 2009, Scroggins filed a motion to compel responses to special interrogatories, set one, and a motion to compel responses to form interrogatories, set one, with a hearing date scheduled on January 12, 2010. There was also a motion to compel responses to a request for production of documents. No opposition was filed to the motions, and the motions were granted on January 12, 2010. Bell was ordered to provide verified responses.
On January 29, 2010, Scroggins filed a motion to dismiss plaintiff's complaint, or preclude any evidence of injuries or damages, with a hearing date of March 2, 2010.
No opposition was filed to the motion to dismiss, and on March 2, 2010, counsel for Bell failed to appear for the hearing. The motion was granted and the case was ordered dismissed. Monetary sanctions in the amount of $565 against Bell and Chandra were ordered to be paid within 30 days.
Dismissal as to IUSD
On November 13, 2009, IUSD served a request for production of documents, set one; form interrogatories, set one; public entity interrogatories, set one; and special interrogatories, set one, on Chandra.
After no responses were received, on January 29, 2010, IUSD filed a motion to compel responses to request for production of documents, set one; and a motion to compel responses to form interrogatories, set one; public entity interrogatories, set one; and special interrogatories, set one. A hearing date was set for March 5, 2010.
On March 5, 2010, the motions were heard by the court. No written opposition to the motions had been filed. Chandra appeared at the hearing. The motions were granted and the court ordered Bell to serve responses without objection within ten days from the date of the hearing. Monetary sanctions in the amount of $700 were awarded.
On March 18, 2010, having not received any discovery responses, IUSD filed a motion to dismiss plaintiff's complaint, or preclude any evidence of injuries or damages. The motion was scheduled for April 15, 2010.
On April 15, 2010, the motion was heard and granted by the court. Chandra attended the hearing. The court awarded monetary sanctions in the amount of $565.
Motion to Set Aside Dismissals
On September 2, 2010, Chandra filed a motion to set aside the dismissals, with a hearing date scheduled for October 13, 2010. The motion was based upon Code of Civil Procedure section 473, subdivision (b). In his supporting declaration, Chandra stated that the case was dismissed as to Scroggins because he did not have actual notice of the March 2, 2010 hearing. He also stated that the case was dismissed as to IUSD solely because of his own neglect and not due to any neglect on the part of Bell. He provided no factual support for the latter statement. As to the former, he speculated that another tenant in his suite could have taken the notice of hearing.
Counsel for Scroggins filed an opposition to the motion on September 28, 2010 and counsel for IUSD filed an opposition to the motion on September 29, 2010. No reply was filed by Chandra.
At the hearing on October 13, 2010, Chandra provided Scroggins and IUSD with discovery responses containing objections, no documents, and a verification signed by Chandra. The court denied the motion to set aside the dismissals.
DISCUSSION
Code of Civil Procedure section 473, subdivision (b) (section 473(b)), provides in pertinent part that "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
Section 473(b) permits the trial court to grant relief from a judgment, order or other proceeding taken against a party by "mistake, inadvertence, surprise, or [excusable] neglect." The provisions of this section are liberally construed in favor of the determination of actions on their merits. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256.) We review a trial court's action under section 473(b) for abuse of discretion. (Zamora, supra, at p. 257; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354.) Discretion is abused when a decision is arbitrary or capricious, or it exceeds the bounds of all reason under the circumstances. (People v. Franco (1994) 24 Cal.App.4th 1528, 1542-1543.) An abuse of discretion must be affirmatively established. (In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 749.)
In the instant case, the trial court determined that it was not counsel's failure to oppose the motions to dismiss that caused the dismissal. It was clearly Bell's failure to comply with the discovery requests and orders of the court. The court stated: "The two dismissals were not entered because of plaintiff's counsel's failure to appear at the March 2, 2010 hearing on defendant Scroggins' motion or plaintiff['s] counsel's failure to file a written opposition to defendant [IUSD's] April 15, 2010 motion. In fact, the dismissals were entered due to plaintiff's failure to comply with her discovery obligations and court orders regarding discovery. Neither plaintiff nor plaintiff's counsel submitted facts to explain how plaintiff's failure to comply with her discovery obligations and court orders regarding discovery was not willful."
While the motion to set aside the dismissals was not based on the discretionary portion of section 473(b), and on the mandatory attorney fault, the trial court noted that it was not the failure of counsel, but the failure of Bell that caused the dismissals. It is clear that Chandra attempted to fall on the sword for his client, but it is equally clear that the ruling was made as a result of the inaction of a party to the litigation and not counsel.
"[T]he mandatory provision of section 473, subdivision (b) applies only to those situations in which the mistake causes a failure to oppose a dismissal motion, such as failing to appear for the hearing on the motion." (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 484.) The relief may be denied if the dismissal is not in fact caused by the attorney's mistake, inadvertence, surprise or neglect. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.) In Todd, after the court denied discretionary section 473 relief, counsel filed a subsequent declaration in which he blamed himself for his client's failure to comply with discovery requests and order. The court found that "[a]lthough a calendaring error caused plaintiff's counsel to miss the hearing on [the defendant's] motion to dismiss, we find no basis for concluding that his presence would have altered the outcome. Thus, to the extent plaintiff's counsel made any mistakes, in calendaring the hearing or otherwise, they did not `actually cause' the dismissal." (Todd, supra, at p. 991, fn. omitted.) The Court of Appeal concluded that "[b]ecause plaintiff's counsel's mistakes, if any, did not cause the dismissal of the lawsuit, the trial court abused its discretion in vacating the dismissal." (Id. at p. 992.) Similarly here, while Chandra claimed his own negligence in failure to oppose and attend the motion to dismiss filed by Scroggins, that did not cause the dismissal. Bell had not complied with discovery requests. In fact, Chandra did appear at the motion to dismiss filed by IUSD and presented oral opposition. The motion to dismiss was still granted based upon Bell's lack of compliance with discovery orders.
The question in applying the mandatory provision of relief from judgment statute is whether or not dismissal was in fact caused by attorney neglect rather than, for example, the actions of the client or an intentional strategic decision. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 601-602, abrogated on another ground by Hossain v. Hossain (2007) 157 Cal.App.4th 454, 457-458.) To obtain mandatory relief under section 473, plaintiff's counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. However, relief is not available if "the trial court finds that the dismissal did not occur because of these reasons." (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
In the motion to set aside the dismissal, Chandra did not explain why Bell never answered the discovery in the first place or why she did not answer it after the motions to compel were filed. Although Chandra mentioned in oral argument that Bell had been ill, the trial court observed that this fact was not in the motion. The trial court was quite clear that the motion to set aside the dismissals was not denied because of counsel's failure to appear at a hearing or counsel's neglect, but because the evidence presented indicated that the dismissals resulted from Bell's failure to answer discovery over a period of several months. On this basis, the trial court did not abuse its discretion in denying Bell's request to set aside the dismissals. (Yeap v. Leake, supra, 60 Cal.App.4th at pp. 601-602; Graham v. Beers, supra, 30 Cal.App.4th at p. 1660.)
DISPOSITION
The order is affirmed. Defendants are to recover their costs on appeal.
WOODS, Acting P. J. and ZELON, J., concurs.
