Getting to the Merits

Austin v. LAUSD, No. B258406 (D2d7) 

The trial court in this employment dispute granted the employer’s summary judgment motion, which plaintiff failed to timely oppose. Plaintiff filed an untimely pro se motion for reconsideration, explaining, among other things that there was additional evidence and that she had been abandoned by her attorney. The trial court recognized that the relief sought potentially implicated a discretionary relief from default under Code of Civil Procedure § 473(b). But because the motion papers were not sworn under penalty of perjury, the court found § 473(b) to be procedurally inapt. After a number of delays for plaintiff to obtain new counsel, plaintiff’s new lawyer filed a correctly formed § 473(b) motion. But by that time, the six-month limit for discretionary relief had run, so the trial court found that any relief from the default was foreclosed.
 
The Court of Appeal agrees that it is appropriate to treat the untimely reconsideration motion as a motion under § 473(b). The moving papers gave the defendant sufficient notice of the relief sought, so it was not unfair for the court to so construe the motion. But the trial court erred in finding that a penalty of perjury requirement applied. 

Indeed, in 1981, § 473(b) was specifically amended to explain that “[n]o affidavit or declaration of merits shall be required by the moving party.” It was thus plain error for the court to deny the motion on that ground. Because the motion and the evidence submitted with it made at least a colorable claim of excusable neglect under § 473(b), the trial court would have had the discretion to grant the motion, had it reached the merits. Thus, the rejection on the motion based on a non-existent procedural hurdle was prejudicial error, meriting reversal.
 
The court further notes that plaintiff substantially complied with § 473(b)’s requirement that an application “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein[.]” Although she didn’t serve an opposition to the summary judgment motion, her “reconsideration” papers contained essentially the information and arguments that would be included in an opposition. Given the plaintiff’s good faith, the policy in favor of deciding cases on the merits (and, although the court doesn’t come out and say it, the sympathetic posture of a litigant abandoned by her attorney) that was sufficient to meet the requirement. So the court reverses and remands for the trial court to consider the § 473(b) motion on the merits in the first instance.
 
Reversed and remanded.