No Mandatory § 473(b) Relief from Voluntary Dismissal

Jackson v. Kaiser Foundation Hosps., Inc., No. A150833 (D1d3 Feb. 8, 2019)

Plaintiff here followed the erroneous advice of an attorney regarding the statute of limitations and dismissed her case without prejudice. When the error was uncovered, she moved to vacate that dismissal under Code of Civil Procedure § 473(b), which affords mandatory relief from a “default or dismissal” due to an attorneys neglect, even if the neglect is inexcusable. The trial court denied the motion and Plaintiff appealed.

There’s a question as to whether the order is appealable. Generally, a § 473(b) seeks relief from a judgment of default or dismissal, which makes it appealable under § 904.1(a)(2) as an order entered after a final judgment. A voluntary dismissal, however, doesn’t result in the entry of judgment, so that logic doesn’t facially apply. But the Court nonetheless looks to some dicta in two cases and decides that a denial of a motion for relief is sufficiently final and the evidentiary record sufficiently clear to make the order appealable, even if the dismissal is not a judgment. 

I think I’m a little skeptical on this. Appellate jurisdiction is supposed to be a pure creature of statute. So we shouldn’t be opening up avenues to appeal that share some formal similarity with appealable orders, but aren’t actually the orders that the Legislature permitted to be appealed. After all, there is already a equitable safety-valve to appellate jurisdiction in the form of the writ of mandamus. So if the court really felt a need to get to the merits, it could have construed the notice of appeal here as a writ petition instead of creating a non-statutory appealable order.

And as to the merits, the mandatory relief provisions of § 473(b) apply only to defaults and dismissals. But they don’t apply to just any old dismissals, or so says the case law. They apply to default-like dismissals. That is, dismissals that result from whiffing on an obligation to respond. Like forgetting to file an opposition and stuff like that. An erroneous voluntary dismissal that results from an attorney’s inexcusable neglect won’t cut it.

Affirmed.