Metropolitan News-Enterprise


Thursday, February 28, 2002


Page 1


Failure to Attach Pleading Vitiates Right to Mandatory Relief From ‘Dismissal’ Due to Lawyer Neglect—C.A.


By a MetNews Staff Writer


The statute mandating that a party be granted relief from a “dismissal” caused by attorney neglect does not apply if the motion for relief is not accompanied by a proposed pleading, the Third District Court of Appeal ruled yesterday.

The panel reinstated a summary judgment in favor of MCI Telecommunications, which was sued for age and disability bias and for defamation by a former employee in its Russian operation.

A Sacramento Superior Court judge erred in setting aside the judgment, relying on the ground that the plaintiff’s lawyer was neglectful in failing to provide discovery responses that might have resulted in denial of the defendant’s motion, the justices said.

The trial court had no jurisdiction to entertain a motion for relief under Code of Civil Procedure Sec. 473(b) when the plaintiff failed to include the proposed responses in its moving papers, the justices said.

MCI contends that the plaintiff, Andrew Jakubowsky, was terminated because he performed poorly and engaged in sexual harassment of coworkers.

During the course of the litigation, the company served a set of requests for admissions, essentially asking the plaintiff to admit he had no case. No responses were served, and the matters were ordered deemed admitted.

MCI then moved for summary judgment, citing the admissions. The plaintiff, again, did not respond and the motion was granted and judgment entered.

Five months later, Jakubowsky’s attorney, Thea Offenbacher, filed a Sec. 473(b) motion.

Sec. 473(b) provides for relief “upon any terms as may be just” to “relieve a party…from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence surprise, or excusable neglect.” Among other requirements, the motion must “be accompanied by a copy of the answer or other pleading proposed to be filed therein.”

As amended in 1992, the statute makes relief mandatory if the client has suffered a “dismissal” due to the fault of the attorney, provided that the motion is filed within six months, “is in proper form” and is accompanied by the attorney’s sworn affidavit establishing that the dismissal was the lawyer’s fault.

If the motion meets the statutory requirements, the court must grant it unless it finds that the dismissal was not the attorney’s fault.

In Jakubowsky’s case, his attorney attached a declaration in which she attested that the lack of a response to the summary judgment motion was “due to my own neglect due to scheduling overload, and not due to any fault on the part of my client.”

MCI responded that the declaration lacked credibility, noted that no proposed response to the summary judgment motion was attached, and insisted that summary judgment would have been required even if opposition papers had been filed.

Judge John V. Stroud—who was not the judge who granted summary judgment—granted the Sec. 473(b) motion.

That was error, Justice Consuelo Callahan said, because the requirement that the “pleading proposed to be filed” be attached to the motion is not limited to requests under the pre-1992 discretionary provision of the statute.

The Legislature intended the requirement to be jurisdictional, the justice said, noting that the provision has been strictly enforced by the courts.

Justice Fred Morrison joined in the opinion. Justice George Nicholson concurred separately, opining that Sec. 473(b) does not apply to summary judgments.

The case is Jakubowsky v. MCI Telecommunications Corp., C035906.


Copyright 2002, Metropolitan News Company