Opinion
Plaintiff Evan English moved to vacate a summary judgment in favor of defendant IKON Business Solutions, Inc., on the ground her attorney had neglected to file a substantive opposition to the summary judgment motion. She relied exclusively on the part of Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)) that requires the court to vacate a “default,” “default judgment,” or “dismissal” resulting from attorney mistake, inadvertence, surprise, or neglect. The trial court concluded English was not entitled to relief under section 473(b) because her attorney’s action did not constitute mistake, inadvertence, surprise, or neglect within the meaning of the statute.
On review, we conclude the mandatory provision of section 473(b) does not apply to summary judgments because a summary judgment is neither a “default,” nor a “default judgment,” nor a “dismissal” within the meaning of section 473(b). Accordingly, the trial court properly denied English’s motion to vacate the summary judgment.
Procedural History
The underlying facts are irrelevant to the issues on appeal. In July 1999, English filed a complaint against her former employer, IKON, asserting causes of action for employment discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and wrongful termination in violation of public policy. 1 English later dismissed her wrongful termination cause of action, leaving only her statutory claims under the FEHA.
In June 2000, IKON moved for summary judgment, offering evidence to negate various elements of English’s claims. In opposing the motion, English did not submit any evidence to show that triable issues of fact existed and did not argue that IKON had failed to negate necessary elements of her claims. Instead, English based her opposition to the motion entirely on subdivision (h) of Code of Civil Procedure section 437c (hereafter section 437c(h)), which requires the court to deny a motion for summary judgment *134 or grant a continuance “[i]f it appears . . . that facts essential to justify opposition may exist but cannot . . . then be presented . . . .” 2 English contended she needed to obtain documents from IKON and complete the depositions of several individuals “to obtain the proper evidence to oppose Defendant’s Motion for Summary Judgment.”
The trial court refused to grant a continuance under section 437c(h), concluding English had “not sufficiently explained what essential facts will be discovered which will raise a triable issue of material fact on any of her claims (of which she presumably has personal knowledge), and why the evidence could not have been presented in opposition to this motion.” The court then concluded that IKON was entitled to summary judgment based on the evidence IKON had submitted in support of its motion. The court entered judgment against English on August 3, 2000, and notice of entry of the judgment was served on English’s attorney by mail on August 23.
Two and a half months later, on November 7, 2000, English filed a motion under section 473(b) to vacate the summary judgment against her. In support of her motion, English’s attorney submitted a declaration in which he claimed he had “neglected to submit a substantive opposition” to the motion for summary judgment “based on [his] mistaken belief that [he] only had to explain why [his] firm had not been dilatory in pursuing the case.” Along with the motion to vacate the judgment, English submitted a new opposition to IKON’s motion for summary judgment in which she presented evidence she contended was sufficient to raise triable issues of fact on almost all of her claims.
IKON opposed the motion to vacate on the ground it was untimely because English had delayed three months before seeking relief and on the ground section 473(b) “affords no remedy to a strategic gambit that fails.” The trial court agreed with the latter argument, holding that the decision by English’s attorney to rely on section 437c(h) as the sole basis for opposing the motion for summary judgment “is not mistake, neglect, inadvertence, or surprise within the meaning of [section] 473(b).” Accordingly, on January 12, 2001, the court denied English’s motion to vacate the summary judgment. This appeal followed.
*135 Discussion
We begin with a jurisdictional issue. In her notice of appeal, which she filed on February 9, 2001, English purports to appeal from “the judgment . . . granting Defendant Ikon’s Motion for Summary Judgment dated August 3, 2000 . . . and [the] rejection of Plaintiff’s Motion for Relief under [section] 473(b), rejected January 12, 2001.” IKON contends the appeal from the summary judgment is untimely. We agree.
“[A] notice of appeal from a judgment shall be filed on or before the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment; (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment.” (Cal. Rules of Court, rule 2(a).) Here, IKON served English with a document entitled “Notice of Entry of Judgment” on August 23, 2000. Accordingly, absent an extension of the time for filing a notice of appeal, English had until October 22, 2000, to file her notice of appeal from the summary judgment.
Under rule 3(b) of the California Rules of Court, the time for filing a notice of appeal may be extended by the filing of a motion to vacate a judgment.
3
“A motion to set aside a judgment under section 473 qualifies as such a motion for purposes of extending the time to file a notice of appeal under rule 3(b).”
(In re Marriage of Eben-King & King
(2000)
English did not file her motion to vacate the summary judgment under section 473(b) until November 7, 2000, more than two weeks after the 60-day deadline for filing her notice of appeal from the summary judgment. *136 Accordingly, English’s filing of a motion to vacate the summary judgment did not extend the time for her to file a notice of appeal from that judgment. With respect to the summary judgment, English’s notice of appeal was more than three and a half months late. For this reason, we have no jurisdiction to review the trial court’s grant of summary judgment in favor of IKON and must dismiss the appeal insofar as it purports to seek review of the summary judgment entered August 3, 2000, and the underlying order granting summary judgment entered August 23, 2000. (See In re Marriage of Eben-King & King, supra, 80 Cal.App.4th at pp. 109-110.)
We turn to the only part of English’s appeal that is timely—her appeal from the trial court’s denial of her motion to vacate the judgment under section 473(b). As relevant here, section 473(b) provides: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 4
In challenging the trial court’s denial of her motion to vacate the summary judgment under section 473(b), English does not rely on the discretionary provision of the statute, which allows, but does not require, the court to relieve a party or his or her legal representative “from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Instead, as she did below, English relies exclusively on the mandatory provision of the statute, which requires the court to vacate a “default” or a “default judgment or dismissal” entered against a party when that party’s attorney swears in an affidavit the default or dismissal was “caused by the attorney’s mistake, inadvertence, surprise, or neglect.” Accordingly, the only question before us is whether the trial court erred in refusing to vacate the summary judgment under the mandatory provision of section 473(b).
*137
In support of her argument that the trial court erred in refusing to vacate the summary judgment, English relies primarily on
Avila v. Chua
(1997)
English contends the decision in Avila controls here because her failure to file a “substantive” opposition to IKON’s motion for summary judgment is analogous to the failure of the plaintiff in Avila to file timely oppositions to motions for summary judgment. In both cases, English contends, the attorney made a “mistake” that resulted in the entry of summary judgment against the client, and the mandatory provision of section 473(b) requires the court to vacate the judgment.
IKON contends
Avila
does not control here because although the failure to timely file an opposition to a motion for summary judgment is “equivalent to a default,” the “strategic decision” to oppose a summary judgment based solely on section 437c(h) is not. IKON relies primarily on the decision of Division Two of the First Appellate District in
Garcia
v.
Hejmadi
(1997)
IKON contends the decision by English’s counsel to oppose the summary judgment motion based solely on section 437c(h) is more akin to the *138 inadequate opposition in Garcia than to the untimely opposition in Avila, and therefore Garcia, rather than Avila, controls here. We conclude, however, that Avila does not control here for a more fundamental reason. Contrary to the court in Avila, we conclude the mandatory provision of section 473(b) simply does not apply to summary judgments because a summary judgment is neither a “default,” nor a “default judgment,” nor a “dismissal” within the meaning of section 473(b). Therefore, regardless of whether summary judgment was entered against English because of her counsel’s mistake or neglect, relief from the judgment was not available to her under the mandatory provision of section 473(b), and the trial court properly denied her motion to vacate the judgment under that provision.
To explain our conclusion, and our understanding of how the
Avila
court and others have come to extend the reach of the mandatory provision of section 473(b) beyond what the Legislature intended, we begin by tracing the history and development of that provision. The discretionary provision of section 473(b) has been part of California law since 1851. (Stats. 1851, ch. 5, § 68, p. 60 [enacting § 68 of Practice Act, predecessor of § 473]; see also
Ayala v. Southwest Leasing & Rental, Inc.
(1992)
As originally enacted, the mandatory provision of section 473(b) was much more limited in scope than the discretionary provision of the statute. While the discretionary provision at that time allowed the court to grant relief from “a judgment, order, or other proceeding . . . ,” the mandatory provision required the court to grant relief only from a “default judgment.” In
Billings v. Health Plan of America
(1990)
The Legislature’s focus on providing mandatory relief from default judgments, but not from other types of judgments, apparently stemmed from reluctance by the trial courts to grant discretionary relief from default judgments because of increased caseloads. (See
Peltier v. McCloud River R.R. Co.
(1995)
In passing, the
Billings
court noted “the amendment’s reference to ‘default judgments’ could be construed to preclude mandatory relief when only the default, as opposed to the default judgment, has been entered.”
(Billings v. Health Plan of America, supra,
In
Ayala,
arbitration awards in favor of two plaintiffs were entered as a judgment when the defendants’ attorney failed to timely request a trial de novo. The trial court refused to vacate the judgment under section 473(b), and the appellate court affirmed that decision, holding: “The mandatory portion of Code of Civil Procedure section 473 is not applicable because there was neither a default judgment nor a default which would result in the entry of a default judgment in this case.”
(Ayala
v.
Southwest Leasing & Rental, Inc., supra,
In 1992, at the urging of the State Bar, the Legislature once again amended section 473(b), this time to give plaintiffs some of the mandatory relief that had been available to defendants since the 1988 amendment. (Stats. 1992, ch. 876, § 4, pp. 4071-4072; see
Peltier v. McCloud River R.R. Co., supra,
In
Tackett v. City of Huntington Beach
(1994)
Judicial interpretation of section 473(b) continued through 1994 as several decisions addressed whether the 1992 amendment to the mandatory provision of the statute required a court to grant relief from a discretionary dismissal for failure to prosecute where the attorney claimed fault for the dismissal. In
Peltier
v.
McCloud River R.R. Co., supra,
In
Huens
v.
Tatum, supra,
Eight months after we decided
Huens,
Division Five of the Second Appellate District decided
Avila
v.
Chua, supra,
The determination of whether the mandatory provision of section 473(b) applies to summary judgments is a task of statutory construction.
*143
“The axioms of statutory construction require us first to look at the words used by the Legislature. If the language is unambiguous, our task is finished. [Citations.] If the language is ambiguous, we then examine the context of the statute, striving to harmonize the provision internally and with related statutes, and we may also consult extrinsic indicia of intent as contained in the legislative history of the statute.”
(Construction Industry Force Account Council v. Amador Water Agency
(1999)
Turning to the language of section 473(b), we find nothing in the statute to suggest the Legislature intended the mandatory provision of the statute to apply to summary judgments. On its face, the mandatory provision requires the court, if certain prerequisites are met, to vacate a “default,” a “default judgment,” or a “dismissal.” As we shall explain, a summary judgment is neither a “default,” nor a “default judgment,” nor a “dismissal.”
The word “default” has both a broad meaning and a narrow meaning. Broadly, a “default” is “[t]he omission or failure to perform a legal or contractual duty . . . .” (Black’s Law Dict. (7th ed. 1999) p. 428.) Narrowly, the word “default” refers to a defendant’s failure to answer a complaint. (See Code Civ. Proc., § 585 [setting forth procedures for entry of default]; Lorenz v. Commercial Acceptance Ins. Co., supra, 40 Cal.App.4th at pp. 990-991 [discussing § 585].) As used in the mandatory provision of section 473(b), “default” carries its narrower meaning. The mandatory provision of the statute requires the court to vacate not any “default,” but only a “default entered by the clerk . . . which will result in entry of a default judgment . . . .” By qualifying the word “default” in this manner, the Legislature plainly conveyed its intent to use the word in its narrower sense. Thus, the mandatory provision of section 473(b) applies to a “default” entered by the clerk (or the court) 7 when a defendant fails to answer a complaint, not to every “omission” or “failure” in the course of an action that might be characterized as a “default” under the more general meaning of the word.
With the word “default” thus properly understood, the meaning of the term “default judgment” follows inexorably. A “default judgment” within the meaning of section 473(b) is a judgment entered after the defendant has failed to answer the complaint and the defendant’s default has been entered. (See Code Civ. Proc., § 585 [setting forth procedures for entry of default judgment];
Peltier v. McCloud River R.R. Co., supra,
*144 Once the terms “default” and “default judgment” are correctly understood, it takes no great leap of logic to conclude that a summary judgment is neither a “default” nor a “default judgment” within the meaning of the mandatory provision of section 473(b). A summary judgment does not result from a defendant’s failure to answer the complaint. Instead, a summary judgment is a judgment entered following a motion based on “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken,” when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subds. (b) & (c).) By its very nature, a summary judgment is distinct from both a “default” and a “default judgment” as those terms are used in section 473(b).
Based on our construction of the statute, the
Avila
court’s conclusion that a summary judgment is “directly analogous to a default judgment” when the opposing party fails to file a timely opposition to the motion misses the point.
(Avila v. Chua, supra,
A similar conclusion follows with regard to the word “dismissal.” Two justices of Division Four of the Second Appellate District have observed that “ ‘dismissal’ is a much broader concept than ‘default’ . . . .”
(Yeap v. Leake
(1997)
In determining the Legislature’s intent in adding the word “dismissal” to the mandatory provision of section 473(b), we must construe the word in the context of the provision in which it appears, “striving to harmonize the provision internally . . . .”
(Construction Industry Force Account Council v. Amador Water Agency, supra,
Applying this principle of construction to the mandatory provision of section 473(b), we construe the word “dismissal” as having a limited meaning similar to the term “default judgment.” This approach is supported by the history of the mandatory provision, set out above. As Justice Epstein explained in his dissenting opinion in
Yeap:
“The purpose of the [1992] amendment was to give plaintiffs the functional equivalent of the ‘default’ provision for defendants . . . .”
(Yeap v. Leake, supra,
This court has previously recognized the legislative intent to achieve parity between defendants and plaintiffs in their entitlement to relief under the mandatory provision of section 473(b). We gave effect to that intent in
Peltier
when we concluded the Legislature “intended to reach only those dismissals which occur through failure to oppose a dismissal motion—the only dismissals which are procedurally equivalent to a default.”
(Peltier v. McCloud River R.R. Co., supra,
Unfortunately, language from our opinions in
Peltier
and
Huens,
which we used to explain our view of the Legislature’s limited intent in adding the word “dismissal” to section 473(b), has been taken out of context and used by other courts to support an expansive interpretation of the mandatory provision of the statute—an interpretation the words of the statute do not support. In holding the provision was not intended to apply to voluntary dismissals, we observed in
Huens
“[t]he purpose of the statute was to alleviate the hardship on parties who
lose their day in court
due solely to an inexcusable failure to act on the part of their attorneys.”
(Huens v. Tatum, supra,
By taking our statement about the purpose of the mandatory provision out of context, the Avila court was able to use that statement to justify extending the reach of the provision beyond the language of the statute itself and beyond what the Legislature intended when it added the word “dismissal” to the statute. At the same time, the Avila court avoided directly addressing the issue we address here—whether the Legislature intended the word “dismissal” to encompass a summary judgment entered against a plaintiff.
Other courts have perpetuated the
Avila
court’s unwarranted, expansive interpretation of the mandatory provision of section 473(b) based on statements taken out of context from our decisions in
Huens
and
Peltier.
In
Yeap
v.
Leake,
the majority held the mandatory provision of the statute entitled a plaintiff to relief from a judgment of “$0” entered after the plaintiff’s attorney failed to attend judicial arbitration and then failed to timely request a trial de novo. Citing
Avila
and
Peltier,
the majority concluded the effect of an award of “$0” “was the same as a dismissal for failure to appear on the first day of trial” and that “the judgment entered in this matter was analogous to a default because it came about as a result of appellant’s failure to appear and litigate at the arbitration hearing.”
(Yeap
v.
Leake, supra,
More recently, in
In re Marriage of Hock & Gordon-Hock
(2000)
We perceive it paradoxical that language from our opinions in
Peltier
and Huens—opinions that construed the word “dismissal” as having a limited meaning in the context of the mandatory provision of section 473(b)—have now led to an expansive interpretation of the statute under which the
*148
dispositive test, largely detached from the language of the statute itself, is whether the ruling from which relief is sought was “in the nature of a default” and whether the party seeking relief “had her day in court.” (See
In re Marriage of Hock & Gordon-Hock, supra,
80 Cal.App.4th at pp. 1444-1445;
Brown
v.
Williams
(2000)
In keeping with our opinions in
Peltier
and
Huens,
and upon careful reassessment of the language and history of the statute, we adhere to the conclusion that the Legislature intended the word “dismissal” to have a limited meaning in the context of the mandatory provision of section 473(b). In doing so, we disagree with the growing number of decisions, including
Avila, Yeap,
and
In re Marriage of Hock & Gordon-Hock,
which, in understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys, have applied the mandatory provision far beyond the limited confines the Legislature intended. “If the Legislature had intended to require relief whenever a client loses his or her day in court due to attorney error, it could easily have said so.”
(Yeap
v.
Leake, supra,
Given the limited meaning of the word “dismissal” as used in the mandatory provision of section 473(b), a summary judgment in favor of a defendant is not a “dismissal.” A summary judgment is not “the removal. . . by a court” “of an application for judicial relief.”
(Yeap v. Leake, supra,
As used in the mandatory provision of section 473(b), the word “dismissal” cannot reasonably be construed to encompass a judgment to which a court has determined the defendant is entitled as a matter of law based on undisputed facts before the court. Consequently, we conclude a summary judgment is not a “dismissal” within the meaning of section 473(b).
Our construction of section 473(b) furthers the legislative goal behind the 1992 amendment of putting defendants and plaintiffs on equal footing in their entitlement to mandatory relief under the statute. Under no circumstance can the term “default judgment,” as we have interpreted that term, be deemed to encompass a summary judgment entered in favor of a plaintiff. By rigorously adhering to the statutory language, to the principles of statutory construction, and to the (by now) well-known legislative purpose behind the 1992 amendment, we carry out the Legislature’s intent by ensuring neither party is entitled to a greater measure of relief than the other under the mandatory provision of section 473(b) in the summary judgment context.
In the appropriate circumstances, of course, relief from a summary judgment may be available to either a plaintiff or a defendant under the discretionary provision of section 473(b). (See, e.g.,
Uriarte
v.
United States Pipe & Foundry Co., supra,
*150 Disposition
The judgment is affirmed.
Blease, Acting P. J., and Sims, J., concurred.
On December 27, 2001, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied February 13, 2002. Kennard, J., was of the opinion that the petition should be granted.
Notes
English also named her former supervisor and a former coworker as defendants but eventually dismissed her claims against them.
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” (§ 437c(h).)
“When a valid notice of intention to move to vacate a judgment or to vacate a judgment and enter another and different judgment is served and filed by any party on any ground within the time in which, under rule 2, a notice of appeal may be filed, or such shorter time as may be prescribed by statute, the time for filing the notice of appeal from the judgment is extended for all parties until the earliest of 30 days after entry of the order denying the motion to vacate; or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment.” (Cal. Rules of Court, rule 3(b).)
Code of Civil Procedure section 473 was not subdivided until 1996. (Stats. 1996, ch. 60, § 1.) Accordingly, cases before 1996 do not refer to subdivision (b) of the statute. Nevertheless, for consistency, we will refer to the statute as section 473(b) throughout this opinion.
The Legislature also inserted the word “dismissal” into the discretionary provision of section 473(b), bringing that provision into its current form. That addition was superfluous, however, because the statute already provided discretionary relief from any “judgment, order, or other proceeding . . . .” As existing case law recognized, “ ‘[a]nything done from the commencement to the termination is a proceeding. . . .’ ”
(Zellerino v. Brown
(1991)
The question presented in Lorenz was whether the mandatory provision of section 473(b) applied to a default entered by the court, as opposed to one entered by the clerk, given the statute’s express reference to the former but not the latter. (See Lorenz v. Commercial Acceptance Ins. Co., supra, 40 Cal.App.4th at pp. 988-989.) The Lorenz court concluded the statute’s reference to a default entered by the clerk was “merely descriptive,” not restrictive. (Id. at pp. 991-992.)
See Lorenz v. Commercial Acceptance Ins. Co., supra, 40 Cal.App.4th at pages 991-992.