Monday, September 23, 2013

Failure to Oppose Summary Judgment Is Not a "Default" Excusable Under CCP § 473(b)

Las Vegas Land & Development Co. v. Wilkie Way LLC, No. B23921 (D2d3 Sept. 19, 2013)

The court of appeal holds that mandatory relief under Code of Civil Procedure § 473(b) in unavailable for relief from summary judgments or when the moving party does not submit an attorney affidavit.

Defendant in a real estate dispute moved for summary judgment. Plaintiff moved for a continuance of the hearing, which was denied, and then failed to file an opposition to the motion. The court granted the motion and entered judgment for the defendant. Six months later, plaintiff moved for mandatory relief from the judgment under Code of Civil Procedure § 473(b), arguing that the entry of the judgment was the result of “bad lawyering,” and due to the fact that it had allegedly been abandoned by its attorneys. The trial court denied the motion because (1) plaintiff did not file a proposed opposition with the motion for relief; (2) it did not submit an affidavit of fault from its attorney; and (3) “bad lawyering” was not a sufficient grounds to set aside the ruling. Plaintiff appealed.

By way of background for the uninitiated, § 473 is a verbose portmanteau of a statute that appeared in the original 1872 code. (David Dudley Field was not exactly William Strunk, Jr.) It jams together three separate concepts: amendments to pleadings (in subdivision (a)), relief from judgments and other orders (in subdivisions (b) and (c)), and correction of clerical errors in judgments (in subdivision (d)). It would be akin to sub-parts of Federal Rules 15, 55, 59, and 60 being rolled into a single rule.

As it relates to this case, subdivision (b) is a very long seven-sentence paragraph with no internal numbering. In ordinary civil cases,* it gives two grounds for relief—one discretionary and one mandatory. The first two sentences address discretionary relief: The court “may” grant relief from a judgment, dismissal, order or other proceeding due to mistake, inadvertence, surprise or excusable neglect “upon any terms as may be just.” The last three sentences address the mandatory aspect: The court “shall,” on a timely application, relieve a party from an entry of default, a default judgment or a dismissal, if the party’s attorney proffers an affidavit attesting that his or her mistake, inadvertence, surprise or neglect caused the default. No “excusability” qualifies that neglect.

Here, for whatever reason, the plaintiff sought only mandatory relief. The court of appeal, after noting a spilt of authority on the point, held that mandatory relief under § 473(b) does not apply to a judgment entered on the granting of a summary judgment motion. According to the court and the cases it viewed as better reasoned—as well Justice Epstein’s dissent in Yeap v. Leake, 60 Cal. App. 4th 591 (1997) which the court cites several times—the concepts of “default” and “dismissal” in fifth sentence § 473(b) merit a narrow construction. “Default” does not mean any failure to abide by a requirement, as it could be understood colloquially, but “default” as it is understood in civil procedure—the failure to answer a complaint and its consequences. Similarly, “dismissal” did not generally mean any order or judgment under which the plaintiff recovers no relief, but instead, a specific order removing an application for judicial relief. So construed, neither “default” nor “dismissal” includes a granted motion for summary judgment.

The court also found, in the alternative, that plaintiff’s failure to file an attorney affidavit attesting to being the cause of the default merited denial of the motion. The record supported neither that the attorneys abandoned their client at summary judgment, nor that plaintiff tried and failed to get an affidavit from the attorneys that represented it during the summary judgment proceedings. There was thus no need to create an exception to the attorney affidavit requirement for mandatory relief.

In reaching this result, the court noted that in the case of an attorney’s abandonment of his or her client at the summary judgment stage, the code does not leave the client without a remedy. But that remedy is a motion for discretionary relief under § 473(b). Mandatory relief requires a “default” or “dismissal” and an attorney affidavit.


*The third and fourth sentences have something to do with shortening time to file applications to set aside orders regarding title to property. The fourth sentence is 158 words long, and it lacks the grace of a Faulkner or Hugo.

Further coverage here.

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