McClain v. Kissler, No. A152352 (D1d2 Aug. 29, 2019)
This an odd case. It’s a fight between some pro ses (although one of them is a lawyer) over contracts related to a marijuana business. Defendant (the lawyer) claimed that she was never properly served. But she nonetheless participated in the litigation for a long time. That said, she never moved to quash service or answered either. Plaintiffs, on the other hand, never tried to put her in default. Eventually, the trial court ordered Plaintiffs to do that, on pain of sanctions. After they did so, Defendant moved for both mandatory and discretionary relief under Code of Civil Procedure § 473(b). Which the trial court denied, finding that Defendant’s neglect was inexcusable.
The Court of Appeal affirms in a lengthy split decision. It’s all made harder by the fact that the case is procedurally complicated and the record is a mess. The lead and dissenting opinions disagree on a number of points about the basic events of the litigation. But the real debate is philosophical. One one hand (the majority view) just not bothering to answer, after months and months of litigation, and even after being told by the court that you need to do, isn’t excusable neglect. So discretionary § 473(b) relief can’t save Defendant. On the other hand, Defendant’s active participation in the litigation suggests it really didn’t make any sense to resolve the case by default (the dissent’s view). Both sides seem basically right, as a matter of first principles anyway.
So far as mandatory § 473(b) relief goes, the Court holds that a lawyer pro se can’t avail herself of that by filing a declaration and falling on her sword. The whole point of mandatory relief is to save the client from her lawyer’s mistakes. When the client and the lawyer are the same person, that doesn’t make sense.
Affirmed.
Showing posts with label discretionary relief. Show all posts
Showing posts with label discretionary relief. Show all posts
Friday, September 6, 2019
Thursday, June 1, 2017
D2d5 Retreads on a Broad Read of "Default or Dismissal"
Urban Wildlands Grp. v. City of L.A., No. B271350 (D2d5 Apr. 13, 2017)
Plaintiff filed for a writ of administrative mandamus but failed to file the administrative record with the trial court. The court denied the writ on the merits, finding that Plaintiff hadn’t met its burden to show error in the record. Plaintiff then sought relief under Code of Civil Procedure § 473(b) based on the fact that his attorney messed up the filing due to neglect. The court denied discretionary relief but granted under the mandatory relief provision in § 473(b).
But mandatory relief under § 473(b) is available only to address a default or dismissal. As we’ve discussed before, there’s an unresolved split of authority about what that means, with some courts reading “default or dismissal” narrowly and others giving it a little more leeway. Interestingly, the court here adopts the narrower reading even though the same division had previously authored two opinions going the other way. See In re Marriage of Hock & Gordon-Hock, 80 Cal. App. 4th 1438, 1442 (2000); Avila v. Chua, 57 Cal. App. 4th 860, 866 (1997). The court purports to disapprove of these cases.
Based on the narrow rule, what happened here wasn’t a default or dismissal. The trial court ruled against Plaintiff on the merits, finding that it wasn’t entitled to a writ because it failed to substantiate error in the underlying administrative proceeding. So the trial court erred in granting mandatory relief.
Reversed.
Plaintiff filed for a writ of administrative mandamus but failed to file the administrative record with the trial court. The court denied the writ on the merits, finding that Plaintiff hadn’t met its burden to show error in the record. Plaintiff then sought relief under Code of Civil Procedure § 473(b) based on the fact that his attorney messed up the filing due to neglect. The court denied discretionary relief but granted under the mandatory relief provision in § 473(b).
But mandatory relief under § 473(b) is available only to address a default or dismissal. As we’ve discussed before, there’s an unresolved split of authority about what that means, with some courts reading “default or dismissal” narrowly and others giving it a little more leeway. Interestingly, the court here adopts the narrower reading even though the same division had previously authored two opinions going the other way. See In re Marriage of Hock & Gordon-Hock, 80 Cal. App. 4th 1438, 1442 (2000); Avila v. Chua, 57 Cal. App. 4th 860, 866 (1997). The court purports to disapprove of these cases.
Based on the narrow rule, what happened here wasn’t a default or dismissal. The trial court ruled against Plaintiff on the merits, finding that it wasn’t entitled to a writ because it failed to substantiate error in the underlying administrative proceeding. So the trial court erred in granting mandatory relief.
Reversed.
Tuesday, March 22, 2016
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.
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.
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