6 Cal. App. 5th 477
Cal. Ct. App.2016Background
- Linda Gee sued Greyhound and others in Sacramento County for personal injuries from a 2010 bus accident; Greyhound moved to change venue to Fresno.
- The trial court granted the change of venue and ordered Gee to pay transfer fees; Greyhound did not state fees in its motion and did not pay them either.
- Gee’s counsel (Hassan) did not pay the transfer fees or respond; the court dismissed Gee’s complaint without prejudice under Code Civ. Proc. § 399(a) for failure to pay transfer fees.
- Gee filed an original motion under Code Civ. Proc. § 473(b) (within six months) asking the court to set aside the dismissal, supported by Hassan’s sworn declaration admitting attorney error and explaining he believed the moving party would pay transfer fees.
- The trial court granted the § 473(b) motion, treating the dismissal as the functional equivalent of a default caused by counsel’s mistake; Greyhound appealed.
- The Court of Appeal affirmed, holding § 473(b) may provide mandatory relief for dismissals caused by plaintiff counsel’s mistake over failure to pay transfer fees, and § 1008 did not bar an initial § 473(b) motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction to set aside the dismissal under § 473(b) without complying with § 1008 | Gee: § 1008 governs reconsideration/renewals only; her § 473(b) motion was an initial application and therefore § 1008 does not apply | Greyhound: The motion was in substance a request to revoke a prior order and therefore subject to § 1008’s procedural/jurisdictional requirements | Held: § 1008 does not restrict initial § 473(b) applications; court had jurisdiction to grant relief under § 473(b) (Even Zohar analysis) |
| Whether § 473(b) can provide mandatory relief when dismissal resulted from plaintiff counsel’s failure to pay transfer fees | Gee: Dismissal was the functional equivalent of a default caused by counsel’s mistake; mandatory relief applies | Greyhound: § 473(b) relief is limited and does not apply to this dismissal; other cases distinguish defaults from other dismissals | Held: § 473(b) can apply to dismissals that are the procedural equivalent of defaults, including this dismissal for nonpayment of transfer fees |
| Whether Gee’s § 473(b) showing was sufficient (credibility and scope of declaration) | Gee: Hassan’s sworn affidavit sufficiently established counsel’s mistake/inadvertence about who bore transfer fees and explained inexcusable neglect | Greyhound: Hassan’s explanation lacked credibility and failed to explain ignoring notices and the dismissal hearing; Gee failed to address failure to oppose the dismissal motion | Held: Trial court’s implicit credibility finding was supported; counsel’s failure to pay fees was the operative cause of dismissal and § 473(b) mandatory relief does not require neglect be excusable |
| Whether mandatory relief under § 473(b) is available despite inexcusable attorney neglect | Gee: Mandatory provision covers attorney mistake/inadvertence and includes inexcusable neglect when dismissal is the functional equivalent of a default | Greyhound: Insists relief should be discretionary or denied for lack of diligence | Held: Mandatory relief applies even for inexcusable attorney neglect when prerequisites of § 473(b) are met; purpose is to decide cases on merits and protect clients from attorney fault |
Key Cases Cited
- Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC, 61 Cal.4th 830 (clarifies interplay between §§ 473(b) and 1008 and scope of mandatory relief under § 473(b))
- Leader v. Health Industries of America, Inc., 89 Cal.App.4th 603 (mandatory § 473(b) relief required when prerequisites met; review de novo)
- Henderson v. Pacific Gas & Electric Co., 187 Cal.App.4th 215 (mandatory § 473(b) relieves clients for attorney-caused dismissals even if neglect is inexcusable)
- Johnson v. Pratt & Whitney Canada, Inc., 28 Cal.App.4th 613 (credibility determinations on § 473(b) affidavits are for the trial court)
- Gilberd v. AC Transit, 32 Cal.App.4th 1494 (discusses § 1008 requirements for reconsideration in its factual context)
- Vandermoon v. Sanwong, 142 Cal.App.4th 315 (distinguishes final default judgments from other trial dismissals for § 473(b))
- English v. IKON Bus. Solutions, Inc., 94 Cal.App.4th 130 (§ 473(b) does not provide relief from summary judgment; discusses legislative history adding "dismissal" to § 473(b))