Metropolitan News-Enterprise


Wednesday, August 31, 2005


Page 1


Law on Default Relief Held Inapplicable to Summary Judgments


By Kenneth Ofgang, Staff Writer/Appellate Courts


A statute requiring a trial court to grant relief from “default or dismissal” upon timely motion,  accompanied by a declaration showing that the default was the fault of the defendant’s attorney, does not apply to summary judgments, the Court of Appeal for this district ruled yesterday.

Concluding that a contrary ruling by another panel was erroneous, Div. Eight affirmed Los Angeles Superior Court Judge Robert Hight’s denial of a motion to set aside a summary judgment in favor of Loyola Marymount University in a suit by a former employee.

The plaintiff, Rebecca Prieto, was working as an assistant bursar for the university when she developed carpal tunnel syndrome and eventually left on workers’ compensation leave. After three years off work, during which her physicians twice certified that her ability to perform her previous duties was limited, Prieto settled her workers’ compensation case for $69,000 in lump-sum benefits.

A month later, the university terminated Prieto’s employment of more than 20 years, citing its policy limiting leaves of absence to six months; the previous physician’s reports; a more recent report stating that she would be unable to work as an account specialist, a position which the university was willing transfer her to; and the university’s conclusion that it had no positions available for which she was suitable and which she could perform, even with reasonable accommodations.

Prieto brought suit in June 2002, alleging disability discrimination, wrongful discharge, and other causes of action. The university moved for summary judgment, and the motion was granted after neither Prieto or her attorney appeared at the hearing.

Hight found that the university had offered reasonable accommodation and had legitimate, nondiscriminatory reasons for the plaintiff’s termination.

Motion Filed

In September 2003, just shy of six months after judgment was entered, Prieto’s attorney moved to set aside the judgment under Code of Civil Procedure Sec. 473(b), the mandatory relief statute. In support of the motion, counsel filed a declaration saying he did not receive notice of the summary judgment motion.

Hight denied the motion, ruling that a grant of unopposed summary judgment is not a “default or dismissal” under Sec. 473; that the motion was not filed within a reasonable time, since counsel apparently learned of the ruling between the date of the hearing and the entry of judgment; and that a lack of notice is not attributable to counsel and thus does not fail under the mandatory provision.

In a footnote, Justice Madeline Flier, writing for the Court of Appeal, said Hight was in error in denying the motion on timeliness, because the mandatory provision of Sec. 473—unlike the discretionary provision, Sec. 473(a)—imposes no diligence requirement beyond compliance with the six-month limitation.

The court affirmed, however, noting that the motion was brought solely under Sec. 473(b) and concluding that Sec. 473(b) does not apply to summary judgments.

Flier explained that there are two prior Court of Appeal opinions on the issue—English v. IKON Business Solutions, Inc. (2001) 94 Cal. App. 4th 130, in which the Third District said the statute did not apply, and Avila v. Chua (1997) 57 Cal. App. 4th 860, in which this district’s Div. Five—in an opinion by Justice Orville Armstrong—said that it did.

Narrow Construction

Flier reasoned that the statute should be interpreted narrowly because it is an exception to the general rule that attorney fault is attributable to the client, and because the legislative intent was to grant relief from defaults and dismissals, which are entered by a clerk, as opposed to summary judgments, which are the result of a hearing before, and ruling by, a judge.

The jurist elaborated:

“The case at bar is a good illustration of the negative effects of applying the mandatory relief provision of section 473(b) to ‘defaults’ by an attorney that do not lead to the entry of a default by a clerk, which will in turn ‘result in [the] entry of a default judgment.’  Summary judgment was entered two and a half years ago, yet this case continues in litigation.  One reason for the delay is that appellant’s counsel did nothing for nearly six months after March 2003 because he thought that he could make a motion to be relieved from default within six months and, as long as he confessed his fault, he had an absolute “right” to have that motion granted. Thus, rather than have the case resolved in March 2003 on its merits or, if summary judgment was denied, shortly thereafter following a trial, the parties, and the courts, are engaged in midyear 2005 in litigating the question of counsel’s default in opposing the summary judgment motion in early 2003.

Attorneys on appeal were Steven G. Cohn for the plaintiff and Steven D. Weinstein and Bethany A. Pelliconi of Musick, Peeler & Garrett for the university.

The case is Prieto v. Loyola Marymount University, B172366.


Copyright 2005, Metropolitan News Company