Metropolitan News-Enterprise


Monday, December 3, 2007


Page 1


Court Limits Scope of Statute on Relief From Lawyer’s Error


By STEVEN M. ELLIS, Staff Writer


California law mandating relief from dismissal or default caused by negligence of counsel does not apply where summary judgment is granted as a result of an attorney’s failure to timely file opposition and a cross-motion in response to a motion to enforce a settlement, this district’s Court of Appeal ruled Friday.

Div. Four held that Kazi Shadat Hossain was not entitled to mandatory relief under Code of Civil Procedure Sec. 473(b) from Los Angeles Superior Judge Rolf H. Treu’s judgment in favor of Kazi Hossain’s former business partner, Mohammed Jamshed Hossain, because the judgment was not a default or default judgment that would bring the case within the statute.

Kazi Hossain had appealed from Treu’s order enforcing the terms of an agreement settling a dispute between him and his partner for the operation of a hotel. The two were principles in Padma, LLC, which owned a hotel that Jamshed Hossain operated.

After a dispute arose between the two, they signed an agreement in 2004 to dissolve the company which provided that Kazi Hossain would reimburse Jamshed Hossain for renovation and refurbishment costs. In 2005, the parties reached a further agreement through mediation providing that Kazi Hossain would sell his interest to Jamshed Hossain.

Jamshed Hossain moved to enforce the terms of the mediated agreement, and the trial court appointed a referee who found in his favor. The trial judge adopted the referee’s decision and granted summary judgment upon Jamshed Hossain’s motion to enforce the agreement after opposing counsel failed to timely oppose the motion.

Kazi Hossain moved to set aside the judgment under Sec. 473(b), which provides that a court may relieve a party from a default or a default judgment resulting from mistake, inadvertence, surprise, or excusable neglect if the application for relief is made within six months of entry of judgment and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.

When the trial court denied Kazi Hossain’s motion, he appealed, citing a line of authority granting relief under the mandatory provision in situations which he claimed were the procedural equivalents of a default.

Those cases were distinguishable, Presiding Justice Norman Epstein wrote for the Court of Appeal.

Citing English v. IKON Business Solutions, Inc. (2001), 94 Cal.App.4th 130, Epstein wrote:

“[T]he 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).”

Regardless of whether summary judgment was entered because of counsel’s mistake or neglect, he opined, relief from the judgment was not available under the mandatory provision of section 473(b), and the trial court properly denied the motion to vacate the judgment.

However, although it upheld Treu’s decision denying relief under Sec. 473(b), the court in an unpublished portion of its opinion found the amount of the judgment to have been erroneously calculated because Kazi Hossain was not credited with certain payments he made as required by the settlement agreement. The panel ordered that the amount be corrected.

Epstein was joined in his opinion by Justices Thomas L. Willhite Jr., and Steven C. Suzukawa.

Attorneys on appeal were Krishna R. Malhotra, of Malhotra & Malhotra, and Howard Posner for the plaintiff and Mary Rafanai-Steele for the defendant.

The case is Hossain v. Hossain, 2007 S.O.S. 6973.   


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