In Younessi v. Woolf (No. G051034 – filed February 16, 2016), Division Three of the Fourth Appellate District reluctantly affirmed the trial court’s order vacating dismissal of a legal malpractice case. Although the trial court’s stated reason for vacating the dismissal – its discretion to grant relief based upon mistake, inadvertence, surprise, or excusable neglect – was not sufficiently supported, because the dismissal resulted from plaintiffs’ counsel’s inexcusable conduct, plaintiffs were entitled to relief under the “attorney-fault” provision of Code of Civil Procedure section 473(b).
After filing a complaint for legal malpractice based upon the alleged mishandling of an earlier civil action, plaintiffs’ initial counsel was seemingly replaced. Yet, the replacement counsel failed to file the substitution of attorney. Meanwhile, plaintiffs failed to oppose defendants’ demurrers and failed to file an amended complaint within the time allotted by the trial court’s order sustaining the demurrers. Defendants then applied ex parte for an order of dismissal based on plaintiffs’ failure to file an amended complaint, which was unopposed and granted by the trial court. The replacement counsel, who had finally substituted into the action for plaintiffs, thereafter moved to set aside the dismissal under Section 473(b) on grounds of excusable neglect and attorney fault, supported by his declaration. Despite defendants’ opposition, the motion was granted based on Section 473(b)’s “discretionary” provision.
Section 473(b) allows a court to vacate a judgment dismissing an action on two separate grounds. First, “[t]he 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.” Such an application must be made within a “reasonable time,” but in no event more than six months after the dismissal or other action. In Younessi, the appellate court found the trial judge had abused her discretion in relying upon this “discretionary” prong of Section 473(b) because having waited seven weeks after the dismissal to act, plaintiff did not file their motion for relief with diligence. It also found that because their initial counsel received notice of the unopposed demurrers and the replacement counsel “just assumed” that he had additional time to file an amended complaint, plaintiffs failed to provide any evidence supporting a finding of excusable mistake, inadvertence or neglect, a requirement for relief under the “discretionary” provision of Section 473(b).
Yet, the second ground for relief under Section 473(b) is the so-called “attorney-fault” provision, which makes relief from dismissal mandatory if accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise, or neglect” which resulted in the dismissal, unless the court finds that, in fact, the dismissal did not result from such conduct. Unlike the “discretionary” ground for relief, a motion based on “attorney fault” relief need not show diligence in seeking relief. Because it resulted from an unopposed ex parte application for an entry of dismissal, the subject dismissal was procedurally equivalent to a default and resulted from plaintiffs’ counsel’s inexcusable conduct. Thus, the appellate court concluded that the mandatory “attorney-fault” provision applied and affirmed the order vacating the dismissal.
This case was issued on the heels of the recent decision of the Second Appellate District in Martin Potts and Associates, Inc. v. Corsair, LLC, ___ Cal.App.4th ___, 2016 WL 337460 (1/28/2016) [click here for prior alert], which held that relief under Section 473(b)’s mandatory “attorney-fault” provision could not be denied merely because the attorney submitting the supporting declaration failed to articulate the reasons for his mistake, inadvertence, surprise or neglect. Of course, and as demonstrated in Younessi, parties seeking relief under the “discretionary” provision of the statute must demonstrate that any such mistake, inadvertence, surprise or neglect was excusable (typically by explaining the reasons behind the attorney’s omissions). Based on this decision, much more is needed to satisfy the first prong of Section 473(b) than conclusory statements. That said, a party also has the elixir presented by the second prong if a motion to vacate dismissal is filed within six months and includes a declaration from an attorney who accepts responsibility for such dismissal, which courts are required to grant provided there is a causal link. Younessi demonstrates that Section 473(b) is so forgiving that it can protect a client against the inexcusable misconduct of not one, but two attorneys.
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