Gee v. Greyhound Lines, Inc., C077077

Background

Linda Gee sued Greyhound and others in Sacramento County for injuries from a 2010 bus accident; Greyhound moved to change venue to Fresno and the court granted the motion and ordered Gee to pay transfer fees.
Greyhound’s venue motion did not cite the statutory ground (Cal. Code Civ. Proc. § 397(a)) that would have shifted transfer fees to the plaintiff; Greyhound also did not mention transfer fees in its motion.
Gee’s counsel, Allen Hassan, did not pay the transfer fees, did not oppose the motion to dismiss, and the court dismissed Gee’s complaint without prejudice under Cal. Code Civ. Proc. § 399(a) for failure to pay transfer fees.
Gee moved under Cal. Code Civ. Proc. § 473(b) within six months to vacate the dismissal, supported by Hassan’s sworn declaration that his mistake or misunderstanding caused the nonpayment.
The trial court granted the § 473(b) motion as mandatory relief for attorney-caused dismissal; Greyhound appealed arguing the court lacked jurisdiction because Gee should have used Cal. Code Civ. Proc. § 1008 (reconsideration) and that Gee’s showing was insufficient.
The Court of Appeal affirmed, holding § 473(b) applies to vacate dismissals caused by counsel’s mistake about transfer fees and that § 1008 did not bar the initial § 473(b) motion; the court deferred to the trial court’s credibility determination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 473(b) can provide relief from dismissal for counsel’s failure to pay transfer fees	§ 473(b) mandates relief where attorney’s mistake caused a dismissal; Hassan’s affidavit shows mistake about who owed fees	§ 473(b) is inapplicable; dismissal should be reconsidered under § 1008 and counsel’s neglect was inexcusable	§ 473(b) applies to dismissals caused by attorney mistake about transfer fees and mandatory relief was appropriate
Whether Gee had to comply with § 1008 before seeking § 473(b) relief	Initial § 473(b) motion is not a § 1008 reconsideration; § 1008 governs renewals/reconsideration only	Failure to use § 1008 deprived the court of jurisdiction to grant relief	§ 1008 does not bar an initial § 473(b) motion; § 1008 applies only to reconsideration/renewals after a ruling
Whether Gee’s § 473(b) showing was sufficient	Hassan’s sworn declaration explained the mistake and lack of notice about the transfer; mandatory relief does not require excusable neglect	Hassan’s declaration lacked credibility and did not address failure to oppose or appear	Trial court’s implied credibility finding supported granting mandatory relief; the showing was sufficient
Whether mandatory § 473(b) relief requires excusable neglect	Relief is mandatory when attorney mistake caused dismissal, regardless of excusability	Relief should be denied if neglect was inexcusable or counsel was negligent	Mandatory relief under § 473(b) may be granted for inexcusable attorney neglect; excusability is not required

Key Cases Cited

Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC, 61 Cal.4th 830 (Cal. 2015) (clarifies interplay of §§ 473(b) and 1008 and mandatory relief for attorney-caused defaults/dismissals)
Leader v. Health Indus. of Am., Inc., 89 Cal.App.4th 603 (Cal. Ct. App. 2001) (mandatory § 473(b) relief when dismissal is procedurally equivalent to a default)
English v. IKON Bus. Solutions, Inc., 94 Cal.App.4th 130 (Cal. Ct. App. 2001) (distinguishes summary judgment from dismissals eligible for § 473(b) relief)
Gilberd v. AC Transit, 32 Cal.App.4th 1494 (Cal. Ct. App. 1995) (§ 1008 governs reconsideration; § 473 cannot be used to circumvent § 1008 under those circumstances)
Vandermoon v. Sanwong, 142 Cal.App.4th 315 (Cal. Ct. App. 2006) (limits the mandatory provision to true defaults/default judgments; distinguishes full-trial judgments)
Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613 (Cal. Ct. App. 1994) (trial court credibility findings on affidavits underpin § 473(b) relief)