244 Cal. App. 4th 1137
Cal. Ct. App.2016Background
- Plaintiffs Younessi and Alea Investments sued their former attorneys (Camhi, Woolf, Cohen) for legal malpractice after an adverse judgment in prior litigation; defendants demurred and moved to strike.
- No opposition was filed to the demurrers; the trial court sustained them on May 7, 2014, and granted 10 days leave to amend (amended complaint due May 22).
- Plaintiffs substituted in new counsel (Wass) late on May 22; Wass did not timely file the amended complaint and an ex parte dismissal was entered May 28 for failure to amend.
- Plaintiffs filed a section 473(b) motion to set aside the dismissal within six weeks, supported by Wass’s declaration admitting missed steps and errors; the trial court granted relief citing the discretionary prong of § 473(b).
- Defendants appealed the order vacating the dismissal and moved to recover fees from Wass; plaintiffs moved to dismiss the appeal and for relief from default in the appellate proceedings.
- The Court of Appeal (1) denied motions to dismiss the appeal and for relief from appellate default, (2) concluded discretionary relief under § 473(b) was not supported, but (3) affirmed vacatur based on the mandatory attorney-fault provision of § 473(b) because the dismissal was the procedural equivalent of a default caused by counsel’s failure to oppose or timely amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the order vacating a written dismissal appealable? | The order is appealable because the dismissal was a signed written order (§ 581d) and vacatur is a postjudgment order. | Appeal was improper because vacatur of dismissal is not appealable. | Appealable: dismissal was a signed judgment and vacatur is an appealable postjudgment order. |
| Did plaintiffs establish entitlement to discretionary relief under § 473(b) for mistake/inadvertence/excusable neglect? | Wass’s affidavit explained his failures and asked the court to exercise discretion to vacate. | Wass’s failures were inexcusable and plaintiffs lacked diligence in seeking relief. | Denied on discretionary grounds: plaintiffs failed to show diligence and excusable neglect; Wass’s explanations were insufficient. |
| Does the mandatory attorney-fault clause of § 473(b) require vacatur where dismissal resulted from counsel’s failures? | Mandatory relief applies because dismissal was caused by plaintiff’s counsel and the motion was filed within six months with an attorney affidavit. | Mandatory relief is not available where dismissal arose from discretionary dismissal statutes unless the dismissal is the procedural equivalent of a default (e.g., failure to oppose). | Granted under mandatory attorney-fault clause: the dismissal was the procedural equivalent of a default caused by counsel, so mandatory vacatur applies. |
| Were plaintiffs entitled to appellate relief from default for failing to file a respondents’ brief? | Counsel Wass promised to prepare the brief; substitutions and delays justify relief. | Plaintiffs and successive counsel failed to act diligently; no good cause for relief. | Denied: no good cause shown given successive counsel’s inaction and long delays. |
Key Cases Cited
- Kahn v. Lasorda’s Dugout, Inc., 109 Cal.App.4th 1118 (explains signed written dismissal orders are treated as appealable judgments)
- Elsea v. Saberi, 4 Cal.App.4th 625 (vacatur of an appealable final judgment is itself appealable)
- Matera v. McLeod, 145 Cal.App.4th 44 (discusses liberal construction of § 473(b) and mandatory attorney-affidavit relief)
- Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249 (affidavits are construed to include reasonable inferences; standards for § 473 relief)
- Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare System, 57 Cal.App.4th 1078 (limits mandatory § 473(b) relief where dismissal resulted from discretionary procedures unless equivalent to default)
- Leader v. Health Industries of America, Inc., 89 Cal.App.4th 603 (addresses limits on mandatory relief when dismissal follows noticed motions requiring judicial discretion)
- SJP Limited Partnership v. City of Los Angeles, 136 Cal.App.4th 511 (attorney affidavit supporting mandatory § 473(b) relief need not be by the attorney of record if that attorney’s mistake caused the dismissal)
- Hoover v. American Income Life Ins. Co., 206 Cal.App.4th 1193 (court of appeal may affirm on any correct legal theory regardless of the trial court’s stated reason)