Tuesday, December 20, 2016

CCP § 473(b) Covers a Default from Failure to Pay Transfer Fees.

Gee v. Greyhound Lines, Inc., No C077077 (D3 as modified December 6, 2016)

When Plaintiffs case was transferred from Sacto to Fresno counties on motion of Defendant, she was—possibly erroneously—ordered to pay the transfer fees under Code of Civil Procedure § 397 or 399.* But when the case landed in Fresno, her lawyer never tendered the fees. Defendant moved to dismiss under § 399(a), which permits a court to dismiss an action with prejudice if fees go unpaid for 30 days. Plaintiff didn’t file an opposition or respond to the tentative (which was to grant) and the case was dismissed. 

Two months later, Plaintiff’s lawyer filed a § 473(b) motion, seeking to vacate the dismissal based on his neglect in mistakenly failing to pay the fees as ordered. The trial court granted the motion and Defendant appeals.

The Court of Appeal recognizes that because the dismissal had the effect of a plaintiff-side default, her motion implicates the “mandatory relief” prong of § 473(b). Relief under that section is required if the attorney files an declaration falling on his sword, unless the court finds that the dismissal was not, in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.

Defendant makes a threshold argument that Plaintiff’s § 473(b) motion was really a disguised motion for reconsideration, and that because Plaintiff didn’t follow the procedures in § 1008 (the reconsideration statute) the court lacked jurisdiction to grant relief. But the issue is essentially foreclosed by the Supreme Court’s decision in Zohar Construction. Zohar Construction distinguished an original motion under § 473(b) asking a court to relieve a default caused by some other mistake (to which § 1008 doesn’t apply) and a renewed § 473(b) motion, asking the court to reconsider a prior denial of relief from default (to which § 1008 applies). As the court explained, “section 1008 does not restrict initial applications for relief from default under section 473(b).

On the merits, the trial court didn’t err in granting relief. Notably, on a mandatory relief motion, the attorney’s neglect doesn’t need to be excusable. He just needs to provide a credible explanation that the fault was his own. So here, while the attorney’s reasons for his mistake (ignoring communications, missing a notice from the court) might not be excusable, the record supported that they were at least believable enough, particularly given the deference owed to the trial court on credibility issues.

Affirmed.

*Who has to pay the transfer fees depends on the reasons for the transfer. If the plaintiff filed in an improper venue, plaintiff is on the hook under § 397. But if the transfer is convenience-based at the request of the defendant, defendant pays under § 399. Defendant here argued for a convenience-based transfer, but seems to suggest that venue was also improper, although it didn’t really make that point in its motion. 

**Update:  Defendant petitioned for rehearing, arguing that Government Code § 68081 required the Court of Appeal was required to solicit supplemental briefing on Zohar Construction because it was decided after the briefs were filed in the case, and in the absence of that, rehearing was required. But § 68081 requires supplemental briefing or rehearing only when a court renders a decision . . . based upon an issue which was not proposed or briefed[.]” (emphasis added). While Zohar Construction might be new authority, the issue of the interplay between § 473(b) and § 1008 was addressed in the parties' briefs. So § 68081 is inapposite. But the court nonetheless granted the petition for rehearing and essentially reissued its opinion, explaining so much in a new footnote.

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