Inexcusable, but Mandatory

Younessi v. Woolf, No. G051034 (D4d3 Feb. 16, 2106)

After Plaintiffs failed to respond to a demurrer filed by Defendants in a legal malpractice case, the court granted the motion, albeit affording leave to amend. On the last day of the amendment period, Plaintiffs filed a substitution of counsel. But no amended complaint. Following the procedure in Code of Civil Procedure § 581(f)(2) and Rule of Court 3.1320(h), Defendants filed an ex parte application to enter a dismissal, which the court granted in a signed order. The same day the order was entered, Plaintiffs belatedly filed an amended complaint, which everyone treated as ineffective due to the dismissal. A month-and-a-half later, Plaintiffs filed a motion for relief from default under § 473(b), which the trial court granted under § 473(b)’s discretionary prong. 

There are two gateway issues in the appeal. First, plaintiff filed a motion asserting that the order granting § 473(b) was not appealable. Not so. Because the court granted Defendants’ dismissal ex parte because under § 581d such an order—if signed by the court—counts as the entry of judgment, the § 473(b) order is a post-judgment order appealable under § 904.1(a)(2).
 
Second, Plaintiff neglected to file a time respondents brief only to move for relief from that default six months later. While an appellate court can accept a later brief on a showing of good cause, see Cal. R. Ct. 8.60(d), good cause wasn’t shown here. The record basically established that, after learning Plaintiffs’ trial counsel failed to prepare a brief, their appellate counsel nonetheless still did nothing to remedy the situation for several months. That’s not good cause.
 
So far as the merits go, the trial court erred in granting discretionary relief under § 473(b). The record was clear that, although aware the dismissal on the day after it was entered, Plaintiffs and their new counsel waited for an unreasonable length of time before seeking relief. Nor did they provide adequate evidence of the kind of excusable neglect that would merit discretionary relief. Instead, they made unjustifiable mistakes and erroneous assumptions that led to the dismissal. Wholly inexcusable neglect does not merit discretionary relief.
 
But at the end of the day, none of that matters, because Plaintiffs’ § 473(b) motion included an attorney declaration that took the blame for the non-responses that caused the dismissal. And an utter failure to respond to an ex parte for entry of dismissal is the equivalent of a “default or dismissal” subject to § 473(b)’s mandatory relief provision. Thus, so long at the attorney fell on his sword in a procedurally adequate declaration—he did that here—the trial court could and should have vacated the judgment on this ground.

Affirmed.