Metropolitan News-Enterprise


Thursday, December 6, 2001


Page 3


Lawyer’s Tactical Mistake Not Grounds for Attorney Neglect, C.A. Rules


By a MetNews Staff Writer


A client whose lawyer made an ill-fated decision to oppose a summary judgment motion on procedural  grounds rather than substance isn’t entitled to have the resulting judgment thrown out on grounds of attorney “neglect,” the Third District Court of Appeal has ruled.

A summary judgment is not a “default judgment” within the meaning of Code of Civil Procedure Sec. 437(b), mandating relief from default judgment under certain circumstances, Justice George Nicholson wrote Tuesday.

The ruling affirms Sacramento Superior Court Judge Morrison England’s denial of a motion to set aside a summary judgment in favor of IKON Business Solutions, Inc. in a suit by a former employee.

Evan English sued for employment discrimination in July 1999. Eleven months later, IKON moved for summary judgment. English’s attorney did not dispute the factual assertions in the motion but filed opposition under Code of Civil Procedure Sec. 437c(h), saying further discovery was necessary.

The statute provides that the court shall deny summary judgment or grant a continuance if essential facts “cannot...then be presented” in opposition. England, however, said plaintiff’s counsel had not adequately explained what essential facts remained to be discovered.

He found that IKON was entitled to summary judgment based on the evidence presented in support of its motion. More than two months later, the plaintiff moved to vacate the summary judgment under Sec. 473(b), which requires that when an attorney establishes that a “default” or a “default judgment or dismissal” against his or her client was a result of the lawyer’s neglect, the default must be set aside and monetary sanctions imposed on the attorney instead.

Counsel attached a declaration saying he had “neglected” to argue the substance of the motion, along with declarations purporting to dispute the evidence supporting the summary judgment.

     IKON’s counsel argued that Sec. 473(b) did not apply. English lost, the defense argued, not by default but because of a failed “strategic gambit.” England agreed and denied the motion.

Nicholson, writing for the appellate panel, agreed with the trial judge. He noted that the Court of Appeal has declined to apply the statute to various types of attorney error, such as failure to timely file a government tort claim and voluntarily dismissing suit pursuant to a settlement agreement not complied with by the defendant.

      The justice criticized the decision of this district’s Div. Five in Avila v. Chua,

(1997) 57 Cal.App.4th 860, relied upon by the plaintiff. That ruling, along with a few other Court of Appeal decisions have expanded the scope of Sec. 473(b)’s mandatory relief provision well beyond what the Legislature intended, Nicholson said.

The Avila court applied the mandatory relief clause in a case where the attorney didn’t file opposition to a summary judgment motion. The ruling was erroneous, Nicholson said, because “the terms ‘default’ and ‘default judgment,’ as used in the mandatory provision of section 473(b), cannot reasonably be construed to encompass a summary judgment, regardless of whatever omissions or failures by counsel may have preceded the entry of that judgment.”

Nicholson also rejected the reasoning of another decision from Div. Five, In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, which applied the mandatory-relief statute to throw out a judgment in a family law action that was based on the failure of an attorney to appear for trial, the judgment being described by the appellate court as “the procedural equivalent of a default.”

Hock and similar rulings, Nicholson said, “have perpetuated the Avila court’s unwarranted, expansive interpretation of the mandatory provision of section 473(b).”

The case is English v. IKON Business Solutions, Inc., 01 S.O.S. 5767.


Copyright 2001, Metropolitan News Company