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Hobdy v. Gaylor11/7/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellants Ruby Jane Gaylor (Gaylor) and Richard M. Foster and the Law Offices of Richard M. Foster (collectively, Foster) appeal the judgments entered in favor of respondent Damon L. Hobdy. The appellants seek review of the February 6, 2001 order granting respondent's motion for summary judgment. Also, they appeal the order denying the appellants' motion to either vacate the judgment under Code of Civil Procedure section 473 , or for reconsideration. Having concluded that the appellants failed to demonstrate error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
1. The complaint and cross-complaint.
Respondent, an attorney, represented Gaylor in a personal injury lawsuit arising out of a motor vehicle accident. Gaylor promised to pay respondent one-third of the total recovery, and to reimburse him for all costs and expenses. Just prior to trial, Gaylor terminated respondent's representation and substituted Foster in as her attorney of record. Gaylor eventually settled the case for $24,000, but refused to pay respondent his contingency.
Alleging various theories, respondent sued Gaylor and Foster to recover his share of the settlement proceeds and for declaratory relief. In response, Gaylor cross-complained for legal malpractice, negligence, fraud, and intentional infliction of emotional distress.
2. The proceedings below.
Respondent filed a motion for summary judgment addressing his complaint, but not Gaylor's cross-complaint. Gaylor filed a written opposition. Instead of filing his own papers, Foster joined in Gaylor's opposition. Neither Gaylor nor Foster appeared at the hearing.
The trial court granted respondent's motion as to Foster. As to Gaylor, because her cross-complaint still remained, the trial court deemed the motion to be one for summary adjudication and granted it as to each cause of action in the complaint. Subsequently, the trial court entered judgment against Foster on February 6, 2001.
Although the trial court had not yet entered judgment against Gaylor, she filed a section 473 motion seeking relief from judgment. Foster filed a joinder. In her reply, Gaylor asked the trial court to alternatively consider her motion to be a motion for reconsideration. On March 8, 2001, the trial court denied Gaylor's motion and Foster's joinder.
The appellants filed this appeal on March 15, 2001.
Thereafter, respondent filed a motion for summary judgment as to Gaylor's cross-complaint. The trial court granted the motion, finding an absence of admissible evidence demonstrating that respondent had breached the standard of care or caused Gaylor any damage. On June 15, 2001, the trial court entered judgment against Gaylor.
APPEALABILITY
Respondent contends that the portion of this appeal related to the summary judgment motion should be dismissed. This contention lacks merit. Although Gaylor and Foster purport to appeal from the non-appealable order granting summary judgment instead of the judgments themselves, we deem this appeal as filed immediately after each judgment was entered. (Cal. Rules of Court, rule 2(d)(1).) Also, we liberally construe the notice of appeal to encompass an appeal from each judgment. (See Lee Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 73, 78; Cal. Rules
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