[598]Opinion
McDaniel, J. Introduction
Walter R. Martin (plaintiff) brought suit against Bruce A. Johnson (defendant Johnson) and The Church of Jesus Christ of Latterday Saints (defendant church, also referred to as L.D.S. Church).1 Plaintiff charged that defendants had committed the torts of defamation, intentional infliction of emotional distress, interference with prospective advantage and conspiracy to commit those torts. After the action was at issue, the trial court granted 'defendants’ motion for summary judgment made pursuant to Code of Civil Procedure section 437c.2 Thereafter, plaintiff made two motions, one to set aside defendant’s summary judgment pursuant to section 473,3 and the other for a new trial. The trial court denied both motions. Plaintiff appealed “from the denial of Plaintiff’s Motion to Set Aside Summary Judgment and the Motion ... for a New Trial
Statement of Facts
Plaintiff is an ordained minister in the Southern Baptist Convention. He currently teaches the subject of comparative religion at Melodyland School of Theology at Anaheim, California.
Since the early 1950’s, plaintiff has written a number of provocative books, articles and pamphlets and has recorded tapes on the subject he calls the Cult of Mormonism. Those writings include: “The Rise of the Cults” (1955); “Mormonism” (1957), a pamphlet; “The Maze of Mor[599]monism” (1962); a chapter on Mormonism in his book entitled “The Kingdom of the Cults” (1965); a tape entitled “Mormonism Yesterday and Today”; and articles in “Eternity Magazine” concerning Mormonism. Plaintiff has also delivered numerous lectures on this theme. In addition to his writings on his views of Mormonism, plaintiff has authored books and pamphlets on other religions which he characterizes as occultic and has conducted a radio program entitled the “Bible Answer Man” in Orange County, California.
Plaintiff’s action here stems from public criticism by defendant Johnson directed at the integrity of plaintiff’s research and the validity of plaintiff’s opinions on the Mormon religion. Defendant Johnson apparently first had contact with plaintiff on November 1, 1972, on the occasion of a lecture by plaintiff at the Calvaiy Chapel in Costa Mesa, California. After plaintiff’s lecture, defendant Johnson talked with plaintiff about plaintiff’s theories. Plaintiff did not allege that any of his claimed grievances occurred during the November 1, 1972, discussion.
After that meeting, defendant Johnson read plaintiff’s pamphlet entitled “Mormonism.” The record and exhibits before us indicate that in that pamphlet plaintiff had aggressively criticized the Mormon religion. For example, plaintiff stated that “Mormons are polythesists and anti-Trinitarians masquerading under Christian terminology in a clever attempt to appear as ‘angels of light’ when in reality they are . . . ‘ministers of Satan.’ ... In the final analysis . . . Mormonism ... is, a cleverly designed counterfeit of the Christian religion, . . . [U]ndemeath the filmy coat of pseudo-Christian all Mormons adhere tenaciously to the anti-Christian dogmas of Joseph Smith and Brigham Young.”
Primarily in response to plaintiff’s critical opinions in “Mormonism” and secondarily in response to the first discussion he had had with plaintiff on November 1, 1972, defendant Johnson authored a pamphlet entitled “A Mormon Answers.” Plaintiff in part bases his action against defendants on the critical comments of plaintiff articulated by defendant Johnson in “A Mormon Answers.” As appears in the record, that criticism included the following comments by defendant Johnson about plaintiff:
1. “One would be forced to question if Mr. Martin actually used the sources listed.”
2. “His (plaintiff’s) work is a travesty on scholarship.”
[6003]. “Plaintiff’s writings contain . . . factually gross violations of what they taught, Joseph Smith and Brigham Young.”
4. “Mr. Martin continues his misrepresentations.”
5. “Did Satan tell an out-and-out lie? No, he told a half truth. That is what Mr. Martin does . . . .”
6. “If Mr. Martin wishes to be honest. . . .”
7. “Most anti-Mormon writers begin in much the same fashion as Mr. Martin, that of character assassination.”
Plaintiff further bases his action on public statements made by defendant Johnson on June 4, 1974, at the Westminster Presbyterian Church, Westminster, California. Defendant Johnson had engaged in a debate with plaintiff during the question-and-answer period following plaintiff’s lecture at that church. The record indicates that defendant Johnson made the following comments:
“(a) I stand here tonight and I’m prepared with evidence and I charge you of deception and of fraud in your representation of what Mormons teach and what Brigham and Joseph said;
“(b) One further example of the fraud you represent;
“(c) Misrepresenting grossly;
“(d) You spent 24 years of your life deceiving!.]”
The record further indicates that during the heated exchange between plaintiff and defendant Johnson at the time and place noted, plaintiff made the following statements:
“1. I have no respect for the Mormon Church, nor for Joseph Smith and Brigham Young, because I believe as Orson Pratt has said that they have been deceived and that their theology is contrary to biblical revelation....
“2. If we are going to ever reach Mormonism, it will be by telling them the truth, as it is in Jesus, and by pointing out to them that though we hate the theology of the Mormon Church because it is evil, we love them because Jesus Christ did and died for their sins.
[601]“3. If they are condemned, (i.e. Mormons) they are condemned by Holy Scripture, because they have listened to false prophets who have made merchandise of them with feigned words ....
“My heart goes out to the sincere and the earnest, and the dedicated Mormon, who has really believed Joseph (Smith) and Brigham (Young). You have believed a lie. . . .”
At the time defendant Johnson authored “A Mormon Answers,” near the end of 1972, he was a member and elder in the Priesthood of the L.D.S. Church. To hold such position, a male member must be 18 years of age or older. At the time of the verbal exchange between plaintiff and defendant Johnson in June 1974, Johnson lived in the L.D.S. Church geographical area called Fountain Valley First Ward and maintained his elder position there. Because of defendant Johnson’s association with the L.D.S. Church as described, plaintiff named that church and its subsidiary groups as defendants. Plaintiff’s alleged right to recovery against the church defendants is on a theory of vicarious liability based on respondeat superior.
Beyond the key procedural issues framed by the appeal, the record suggests several interesting issues relating to the merits of the action as filed. For example, is plaintiff a public figure within the framework of Gertz v. Robert Welch, Inc. 418 U.S. 323 [41 L.Ed.2d 789, 94 S.Ct. 2997], and if so, does the New York Times Co. v. Sullivan, 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412] “actual malice” test apply when a defendant is not media related? (See, e.g., Shiffrin, Defamatory Non-Media Speech and First Amendment Methodology (1978) 25 UCLA L.Rev. 915.) However, because of the procedural posture of this case, we are precluded from addressing those issues directly in disposing of the appeal.
Plaintiff’s notice of appeal expressly states that he is appealing “from the denial of [his] Motion to Set Aside Summary Judgment and [his] Motion ... for a New Trial.” Defendants contend that plaintiff’s appeal should be dismissed because he has appealed from nonappealable orders. Defendants first assert that “well settled authority in California forbids an appeal from a denial of a motion to set aside a previous judgment. . . .” Secondly, defendants urge that “[i]t is unquestioned appellate procedure that a denial of a Motion for a New Trial is nonappealable.”
[602]As we shall explain below, defendants are correct in their assertion that plaintiff’s appeal from the trial court’s denial of his motion for a new trial must be disregarded because such an order is nonappealable. On the other hand, defendants’ contention that plaintiff’s appeal from the trial court’s order denying his section 473 motion is similarly nonappealable is incorrect. Such an order after judgment is clearly appealable. (§ 904.1, subd. (b).) Thus, the key issue before us is whether the trial court abused its discretion in denying plaintiff’s section 473 motion. Our conclusion is that it did not.
I
During the hearing on the earlier motion for summary judgment made by defendants they argued that plaintiff’s affidavits in opposition were legally defective because they contained hearsay and were not based on the declarants’ personal knowledge. Hence, according to defendants, they failed to conform to the requirements in section 437c governing declarations and affidavits filed in opposition to a motion for summary judgment. “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (§ 437c, italics added.)
Because of the defects noted, the trial court granted defendants’ motion to strike certain paragraphs of plaintiff’s declaration and exhibits submitted by him. In doing so, the court stated, “Gentlemen, the motion to strike Paragraphs five, six, ten and eleven and all of the exhibits to the declaration of Walter Martin is granted on the ground that same contains, is offered for the truth of what was said and that it’s hearsay and it does not appear to the Court to come within any of the exceptions to the hearsay rule.”
The paragraphs and exhibits stricken deal essentially with information plaintiff sought to introduce in connection with proving vicarious liability and conspiracy claims against the L.D.S. Church. For example, paragraph 5 of plaintiff’s declaration, stricken by the court, reads:
“5. During the course of this litigation, I had a meeting with Marilyn Johnson, wife of defendant Bruce Johnson, at Garden Grove, California. During that meeting I asked Marilyn Johnson various questions to which she responded. A tape wás taken of the conversations which occurred at that meeting, a transcript of which is attached hereto as Exhibit B. From [603]the conversation, it became apparent that the accusations made by Bruce Johnson on June 4, 1974 and those contained in his publication ‘A Mormon Answers’ were maliciously made as part of a conspiracy by and with the knowledge, authorization, consent and subsequent ratification of various [church] defendants and their officers and agents.”
After the trial court awarded defendants their summary judgment, plaintiff noticed a motion to set aside that judgment pursuant to section 473.4 In support of his motion, plaintiff asserted “[t]hat [his] attorney inadvertently and mistakenly filed affidavits that were not within the personal knowledge of plaintiff.” Plaintiff’s attorney’s declaration in support of the section 473 motion offered the following “excuse” for the submission of plaintiffs defective declaration and exhibits at the time of the summary judgment motion: “. . . it was our office’s decision that due to the lateness of time in filing our opposition papers and not wanting again to have to obtain a continuance, and believing that the affidavits were sufficient to allow plaintiff to state what other persons had told him personally, to attach said affidavits to our opposition papers.”
II
Turning to the several questions imported by the foregoing California law in this area is well settled and holds that a denial of a motion to set aside a previous judgment is generally not appealable. (See, e.g., Southern Pac. R. R. Co. v. Willett, 216 Cal. 387 [14 P.2d 526].) The policy underlying preclusion of an appeal from a motion to set aside a judgment has been articulated by the California Supreme Court in Spellens v. Spellens, 49 Cal.2d 210 [317 P.2d 613]: “This proposition stems from the rule that forbids a party to do indirectly what he may not do directly. Even where there is a right of appeal from a judgment or order, a party cannot ordinarily take an appeal from a subsequent order denying a motion to vacate the judgment or order complained of, under such circumstances that the motion merely calls upon the court to repeat or overrule the former ruling on the same facts. . . . The party aggrieved by a judgment or order must take his appeal from such judgment or order itself, if an appeal therefrom is authorized by statute, and not from a subsequent order refusing to set it aside.” (Id., at p. 228.)
Exceptions to that rule do exist, however. In Daley v. County of Butte, 227 Cal.App.2d 380 [38 Cal.Rptr. 693], the court recognized that while a party might correctly have appealed from a default judgment, “the record [604]on appeal would not have reflected [that party’s] side of the story. Under these circumstances, where a direct appeal from the dismissal is relatively ineffectual, the order refusing to vacate the dismissal is appealable. [Citations.]” (Id, at p. 389.)
Further, in Spellens v. Spellens, supra, 49 Cal.2d 210, the Supreme Court recognized that “an appeal may be taken from an order denying [a motion to vacate] where the judgment has been obtained through mistake, inadvertence, surprise, or excusable neglect.” (Id., at p. 229.) In that case the court permitted a party’s appeal from an order denying a motion to set aside the judgment because a mistake of fact had existed when the trial court made its order. (Id.)
More precisely, “[i]n . . . cases where the law makes express provision for a motion to vacate [original italics]—as under section 473, . . .—an order denying such motion is regarded as a ‘special order made after final judgment’ and as such is appealable [italics added] . . . .” (Winslow v. Harold G. Ferguson Corp., 25 Cal.2d 274, 282 [153 P.2d 714]; see, e.g., Sanford v. Smith, 11 Cal.App.3d 991, 998 [90 Cal.Rptr. 256]; Paqlmese v. Superior Court, 193 Cal.App.2d 600, 602 [14 Cal.Rptr. 453]; In re Marriage of Simmons, 49 Cal.App.3d 833, 835-836 [123 Cal.Rptr. 213].)
Our principal inquiry, therefore, it appearing that the order denying the section 473 motion is appealable, is to determine whether plaintiff presented any facts showing that he was entitled to relief under section 473, and more exactly whether the trial court abused its discretion in denying plaintiff’s motion made pursuant to that section.
It is axiomatic that a motion for relief under section 473 is addressed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless, as a matter of law, it is not supported by the record. (Coyne v. Krempels, 36 Cal.2d 257, 263 [223 P.2d 244].)
Additionally, we note that the law favors trials on the merits and courts are loath to penalize a litigant for the omission of counsel, particularly when the litigant has acted promptly, and has relied upon the attorney to protect his rights. (Martin v. Cook, 68 Cal.App.3d 799, 809 [137 Cal.Rptr. 434].) Nevertheless, to obtain relief under section 473, [605]plaintiff must demonstrate that the mistake or neglect on the part of counsel was excusable. (Id.)
In Martin v. Cook, supra, 68 Cal.App.3d 799, the court reversed a trial court’s grant of a plaintiff’s section 473 motion. In that case the defendant moved to dismiss because of the plaintiff’s failure to bring the case to trial within five years, pursuant to section 583, subdivision (b). That motion was granted. Plaintiff then moved to set aside the dismissal pursuant to section 473, arguing that his failure to comply with section 583 was because of inadvertence and mistake. The trial court granted plaintiff’s section 473 motion, the case then went to trial, and the plaintiff recovered a $100,000 verdict.
On appeal, the court reversed, holding that the trial court had abused its discretion in granting plaintiff’s section 473 motion because “counsel for plaintiff’s explanation of his delay when considered in the light of the record . . . demonstrates a lack of activity . . . [and] indicates a failure to discharge the duty devolving upon every person who files an action on behalf of his client, to prosecute it with reasonable promptness and diligence.” {Id., at p. 808.)
In Martin, plaintiff’s counsel signed a stipulation waiving the provisions of section 583, subdivision (a), the two-year statute. He erroneously thought, however, that the stipulation had likewise waived the five-year provision in section 583, subdivision (b). In a declaration supporting plaintiff’s section 473 motion, plaintiff’s counsel argued that his mistake of fact rendered enforcement of section 583, subdivision (b) unjust. The court rejected that argument, holding that “[fjailure of plaintiff’s counsel to carefully read and understand the stipulation prior to executing and filing the same is inexcusable conduct and does not provide the foundation for estoppel to assert the five-year mandatory dismissal statute.” (Id., at p. 810.)
More importantly, California courts have expressly taken the position that “ ‘[i]gnorance of the law, at least where coupled with negligence in failing to look it up, will not justify a trial court in granting relief [citations], and such facts will certainly sustain a finding denying relief. [Citations.]’ [Citation.]” (Coordinated Construction, Inc. v. Canoga Big “A,”Inc., 238 Cal.App.2d 313, 320 [47 Cal.Rptr. 749].)
In Coordinated Construction, Inc., supra, defendant’s attorney failed to consider a time limitation rule providing for the filing of responses to [606]petitions to confirm or vacate an arbitration award. Such failure resulted in defendant’s response to be filed late and thus not considered by that court. Defendant then noticed a section 473 motion to set aside the trial court’s order confirming the arbitration award. The trial court denied defendant’s motion. On appeal, the court affirmed the order denying the section 473 motion, holding that: “ ‘The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.’ [Citation.]” (Id, at p. 319.) “[Defendant’s] attorney admitted he was ignorant of the law and apparently he was negligent in researching it as he failed to consider the applicable section. Such being the case, the trial court correctly refused to grant the motion.” (Id., at p. 320.)
Similarly, in Security Truck Line v. City of Monterey, 117 Cal.App.2d 441 [256 P.2d 366, 257 P.2d 755], the court affirmed a trial court’s denial of defendants’ section 473 motion to set aside a default judgment. The court noted that “[t]he sole ground now relied upon to secure a reversal of the order refusing to set aside the default is . . . that the city attorney honestly but erroneously believed that [an] appeal from the order granting the preliminary injunction operated as a stay of all proceedings in the main action.” (Id., at p. 444.)
The court went on to note that an honest mistake when the problem is complex and debatable “and where there are no elements of negligence, laxness or indifference, may compel the granting of [a section 473 motion].” (Id., at p. 445.)
However, in affirming the trial court’s denial of defendants’ section 473 motion the court reasoned that “[t]he assertion that counsel for the defendants believed that the appeal for the preliminary injunction acted as a stay and made it unnecessary for appearances to be made in the main action is not sufficient to compel a reversal of the order denying relief. The problem of law involved is a simple one. Its solution is readily ascertainable. When this is coupled with the fact that counsel for plaintiff warned counsel for defendants that appearances were necessary and did not take the default until over two weeks had elapsed after the warning, it is clear that the trial court was justified in believing that the failure to look up the law indicated at least indifference.’’'’ (Id., at p. 446, italics added.)
Similarly here, the declaration by plaintiff’s original counsel accompanying plaintiff’s section 473 motion fails to offer any adequate [607]excuse to permit relief under that section. The failure to read carefully section 437c and thereby to realize that all affidavits filed in opposition to a motion for summary judgment must contain only admissible evidence demonstrates indifference and clearly falls within the rule of Security Truck Line. The conclusionary assertion that “the affidavits were mistakenly thought to be legally sufficient” fails to explain why such an obvious mistake occurred. The circumstances here involve an easy, uncomplicated rule of law expressly embodied in the Code of Civil Procedure. We cannot say that such a misconception was reasonable or justifiable. Hence, in our view the trial court did not abuse its discretion in denying plaintiff’s motion to set aside the summary judgment pursuant to section 473, and its order is affirmed.
Ill
We note further that plaintiff has also appealed from the trial court’s denial of his motion for a new trial. The Supreme Court has trenchantly stated: “No appeal lies from the trial court’s denial of defendants’ motion for new trial; that ruling may be reviewed only through an appeal from the judgment. [Citations.] Defendants have not appealed from the judgment, and, since timely notice of appeal is a jurisdictional requirement [citation], we are without jurisdiction to review the judgment or the denial of defendants’ motion.” (Hamasaki v. Flotho, 39 Cal.2d 602, 608 [248 P.2d 910].)
Plaintiff urges that we construe his appeal from the trial court’s denial of his motion for a new trial as an appeal from defendants’ summary judgment, an appealable order. He argues that “[o]ur Appellate court [j/c] have been long committed to respect form less than substance . . . and have applied that rule of liberal construction of a Notice of Appeal to the end that a litigant may properly maintain his right of appeal rather than lose that right because of some inartful framing of such Notice.”
We acknowledge that such a device has occasionally been resorted to by courts in this state under certain circumstances. (See, e.g., Shonkoff v. Dant Inv. Co., 258 Cal.App.2d 101 [65 Cal.Rptr. 463].) In Shonkoff, plaintiff appealed solely “ ‘from the order denying new trial.’ ” (Id.) The court recognized that “[t]he practice of appealing both from the judgment and the order denying new trial has been repeatedly condemned by dismissal of the latter appeal.” (Id.) However, because plaintiff’s notice of appeal in Shonkoff was only directed to the order denying a new trial because of his attorney’s error, and “mere error by counsel [should] not [608]deprive a party of all appeal” (id., at p. 102), the court held “the notice should be deemed to constitute an appeal from the judgment.” (Id., at p. 103.)
Unlike the plaintiff in Shonkoff, our dismissal of plaintiff’s appeal from a nonappealable order will not deprive him “of all appeal.” Our decision in this case derives from a consideration of the issue of whether the trial court abused its discretion in denying plaintiff’s section 473 motion. Plaintiff had properly appealed from the order of the trial court denying that motion. Now to accede to plaintiff’s request and construe his notice appealing from a nonappealable order as an appeal from summary judgment would effectively give plaintiff a second bite at the apple. This he cannot have. In our view, the situation here is one “where a notice of appeal from a nonappealable order cannot and should not be treated to be a notice of appeal from a judgment. . . entered.” (Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 661 [323 P.2d 158].)
When a party appeals from both appealable and nonappealable orders, courts in this state regularly dismiss the appeal from the latter order. (See, e.g., Hamasaki v. Flotho, supra, 39 Cal.2d 602, 608; Rodriguez v. Barnett, 52 Cal.2d 154, 156 [338 P.2d 907].) In dismissing plaintiff’s appeal from the trial court’s denial of his motion for a new trial, we have done no more than adhere to that well-established practice.
Disposition
The trial court’s order denying plaintiff’s section 473 motion is affirmed. Plaintiff’s appeal from the trial court’s order denying his motion for a new trial is dismissed.
Gardner, P. J., and Tamura, J., concurred.
Plaintiff named as additional church defendants, “The First Presidency; Corporation of the President; The Corporation of the Presiding Bishop; California Anaheim Mission; Santa Ana Institute of Religion; Fountain Valley First Ward; Costa Mesa First Ward; Newport Beach Stake; Irvine Institute of Religion; and Costa Mesa Institute of Religion.”
All statutory references hereafter are to the Code of Civil Procedure, unless otherwise noted. Section 437c reads in part: “Any party may move for summary judgment . . . if it is contended that the action has no merit or that there is no defense thereto. . . . Such motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Section 473 reads in part: “The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, . . . taken against him through his mistake, inadvertence, surprise or excusable neglect.”
See footnote 3 ante.