Relief From Dismissal Under Mandatory “Attorney-Fault” Provision of CCP 473(b) Granted Despite Absence of Evidence that Attorney’s Neglect Was Excusable


In Younessi v. Woolf (No. G051034 – filed Feb 16, 2016), Division Three from the 4th Appellate District unwillingly affirmed the trial court’s order vacating dismissal of the legal malpractice situation. Even though the trial court’s mentioned reason behind vacating the dismissal – its discretion to allow relief based on mistake, inadvertence, surprise, or excusable neglect – wasn’t sufficiently supported, since the dismissal resulted from plaintiffs’ counsel’s inexcusable conduct, plaintiffs were titled to relief underneath the “attorney-fault” provision of Code of Civil Procedure section 473(b).

After filing a complaint for legal malpractice based on the alleged mishandling of the earlier civil action, plaintiffs’ initial counsel was apparently replaced. Yet, the substitute counsel unsuccessful to file for the substitution of attorney. Meanwhile, plaintiffs unsuccessful to oppose defendants’ demurrers and unsuccessful to file for an amended complaint inside the time allotted through the trial court’s order sustaining the demurrers. Defendants then applied ex parte to have an order of dismissal according to plaintiffs’ failure to file for an amended complaint, that was unopposed and granted through the trial court. The substitute counsel, who’d finally substituted in to the action for plaintiffs, after that gone to live in put aside the dismissal under Section 473(b) on grounds of excusable neglect and attorney fault, based on his declaration. Despite defendants’ opposition, the motion was granted according to Section 473(b)’s “discretionary” provision.

Section 473(b) enables a court to vacate a judgment dismissing an action on two separate grounds. First, “[t]he court may, upon any terms as might be just, relieve a celebration or their attorney from the judgment, dismissal, order, or any other proceeding taken against her or him through their mistake, inadvertence, surprise, or excusable neglect.” This kind of application should be made inside a “reasonable time,” however in no event greater than six several weeks following the dismissal or any other action. In Younessi, the appellate court found the trial judge had mistreated her discretion in relying this “discretionary” prong of Section 473(b) because getting anxiously waited seven days following the dismissal to do something, complaintant didn’t file their motion for relief with diligence. Additionally, it discovered that as their initial counsel received notice from the unopposed demurrers and also the substitute counsel “just assumed” he had more hours to file for an amended complaint, plaintiffs unsuccessful to supply any evidence supporting a finding of excusable mistake, inadvertence or neglect, essential for relief underneath the “discretionary” provision of Section 473(b).

Yet, the 2nd ground for relief under Section 473(b) may be the so-known as “attorney-fault” provision, making respite from dismissal mandatory if supported by an attorney’s sworn affidavit attesting towards the attorney’s “mistake, inadvertence, surprise, or neglect” which led to the dismissal, unless of course a legal court finds that, actually, the dismissal didn’t derive from such conduct. Unlike the “discretionary” ground for relief, a motion according to “attorney fault” relief do not need to show diligence in seeking relief. Since it resulted from your unopposed ex parte application to have an entry of dismissal, the topic dismissal was procedurally equal to a default and resulted from plaintiffs’ counsel’s inexcusable conduct. Thus, the appellate court figured that the required “attorney-fault” provision applied and affirmed an order vacating the dismissal.

This situation was issued around the heels from the recent decision from the Second Appellate District in Martin Potts and Associates, Corporation. v. Corsair, LLC, ___ Cal.Application.fourth ___, 2016 WL 337460 (1/28/2016) [see prior Haight Alert dated 2/4/2016], which held that relief under Section 473(b)’s mandatory “attorney-fault” provision couldn’t be denied just since the attorney submitting the supporting declaration unsuccessful to articulate the reason why for his mistake, inadvertence, surprise or neglect. Obviously, so that as shown in Younessi, parties seeking relief underneath the “discretionary” provision from the statute must show such mistake, inadvertence, surprise or neglect was excusable (typically by explaining the reason why behind the attorney’s omissions). According to this decision, a lot more is required to fulfill the first prong of Section 473(b) than conclusory statements. That stated, a celebration also offers the elixir presented through the second prong if your motion to vacate dismissal is filed within six several weeks and features a declaration from your attorney who accepts responsibility for such dismissal, which courts are needed to allow provided there’s a causal link. Younessi shows that Section 473(b) is really forgiving that it may safeguard a customer from the inexcusable misconduct of not just one, but two attorneys.



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