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Jakubowsky v. MCI Telecommunications Corp.2/27/2002
CERTIFIED FOR PUBLICATION
Defendants MCI Telecommunications Corporation and its employee Joe Serrano (collectively MCI) obtained a summary judgment against plaintiff Andrew Jakubowsky in his lawsuit for wrongful discharge and defamation. Plaintiff's counsel failed to oppose or appear at the hearing on summary judgment. More than five months later, plaintiff applied for and was granted relief from the judgment pursuant to the mandatory attorney fault provision of Code of Civil Procedure section 473, subdivision (b) (section 473(b)). (All further statutory references are to the Code of Civil Procedure.)
We will conclude that order was jurisdictionally defective in light of plaintiff's failure to comply with the mandatory requirement that an application for relief under section 473 be accompanied by a copy of the proposed pleading. We reverse.
BACKGROUND
This case began with a multi-count complaint filed by plaintiff against his former employer MCI and two of his supervisors there. In a first amended complaint plaintiff, who was employed in MCI's Russian telecommunications department, alleged that he was ostensibly discharged for poor performance and sexual harassment of co-workers, but that these reasons were a pretext for age and disability discrimination.
After plaintiff conceded, in response to a demurrer, that many of his claims were time-barred, the remaining litigable causes of action were reduced to: wrongful termination based on alleged age and disability discrimination and defamation.
MCI had difficulty obtaining plaintiff's cooperation on discovery. Following numerous unsuccessful attempts to schedule his deposition, MCI obtained a court order compelling his attendance. Subsequently, MCI served plaintiff with a set of requests for admissions, which essentially asked him to admit that he had no factual basis to support any of his claims of age and disability discrimination or defamation. When the time for responding passed without verified responses on behalf of plaintiff, MCI moved for and obtained an order that the matters contained in its requests for admission be deemed admitted.
Armed with the deemed admissions, its own affidavits, and admissions obtained from plaintiff's own deposition, MCI moved for summary judgment, claiming that plaintiff had no evidentiary basis to support his causes of action for discrimination and defamation.
Plaintiff neither filed written opposition nor did he contest the tentative ruling granting summary judgment. On November 9, 1999, judgment was entered in favor of MCI and Joe Serrano and against plaintiff.
On April 24, 2000, plaintiff filed an application for mandatory relief under section 473(b). The sole basis for the application was the affidavit of plaintiff's attorney, Thea L. Offenbacher. Ms. Offenbacher declared that " 's summary judgment motion went unopposed due to my own neglect due to scheduling overload, and not due to any fault on the part of my client, . . ." Specifically, she cited being "overwhelmed" by four summary judgment motions on or around the same time period, a "highly-contested divorce action" which left her emotionally and physically stressed, plus "a quagmire of computer glitches, intervening family law compliance orders and ongoing stress-related colitis attacks," which left her unable either to calendar the motion or to file the necessary opposition papers.
MCI vigorously opposed the motion, asserting that Ms. Offenbacher's declaration was riddled with inconsistencies and unworthy of belief, that no copy of plaintiff's proposed opposition accompanied the motion, and that summary judgment would have been grant
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