Doin' the Right Thing ...

Nocetti v. Whorton, No. C071317 (D3 Mar. 18, 2014)

Plaintiffs failed to show up at trial because their attorney, dying of cancer, apparently miscalendared the trial date. Defendant moved for judgment, and after “reviewing the entire file,” (whatever that means) the trial court entered a defense judgment on the merits. Plaintiffs moved to vacate the judgment under Code of Civil Procedure § 473(b), which affords relief—sometimes mandatory, sometimes at the discretion of the court—from orders that entered due to the mistake, inadvertence, or neglect of a party or its attorney. At a hearing plaintiff’s lawyer was too sick to attend, the trial court denied the motion. The lawyer died soon thereafter, plaintiffs got new counsel, and they appealed. 

In the published part of the opinion, the court holds that plaintiffs weren’t entitled to mandatory relief under § 473(b) because it applies only to “defaults” and “dismissals.” To avoid rendering the discretionary relief as surplusage, established case law reads the mandatory relief narrowly to apply only to default judgments due to failure to respond to a complaint and the plaintiff-side equivalent—dismissals entered after a plaintiff fails to respond to a demurrer or other dismissal-type motion. Because entry of a defense judgment based on a nonappearance after “reviewing the entire file,” is not a dismissal, so defined, plaintiffs don’t get mandatory relief. 

But the court goes on, in an unpublished part of the opinion,* to show plaintiffs a little mercy. It reverses and remands to the trial court to reconsider providing relief under the discretionary provisions of § 473(b), which are not limited to defaults and dismissals, but require any neglect to be excusable. Which having an attorney who appears to have made a mistake while dying of cancer would seem to be.

Reversed.

*I’m on the record as not being a fan of the partial publication rule, which often seems like an excuse to avoid making reasoned decisions about hard or fact-intense issues that bind future cases, when appellate judges think it isn’t worth making precedent. Like decisions about evidence, discovery, and other seemingly mundane procedural issues, for instance. 

But I’ll admit that the rule does occasionally provide a safety valve when what we’ll broadly call “the equities” are offended. In this case, at the § 473(b) motion hearing that plaintiffs’ attorney didn’t attend because he was too busy dying, one of the effectively pro se plaintiffs apparently agreed with the defendant that the court should just “get the matter over with” and he would sue the attorney for malpractice. Some might see that as invited error or waiver. And defendant here made the argument, which the court rejects in a footnote because “[t]his was a voice, though, of frustration, of venting; not a voice knowledgeably inviting error.” Query if that’s a really a call—inferring frustrated sarcasm from a cold transcript—that an appellate court is in a position to make. But it’s the right thing to do. And in the end, I suppose it’s forgivable that this part of the opinion isn’t published, implicit categorical imperative at the heart of the common law appellate process be damned.