Metropolitan News-Enterprise


Tuesday, November 22, 2016


Page 3


C.A. Upholds Order Reviving Suit in Fresno County Bus Crash

Panel Says Judge Had Discretion to Excuse Late Payment of Transfer Fees


By a MetNews Staff Writer


A Sacramento Superior Court judge did not abuse his discretion by reinstating a lawsuit that had been dismissed due to the plaintiff’s failure to pay fees following a transfer of venue, the Third District Court of Appeal ruled yesterday.

The justices affirmed Judge Robert C. Hight’s order granting Linda Gee relief based on attorney neglect under Code of Civil Procedure §473(b).

Gee’s action, filed in 2012, was one of a number of suits arising from a July 2010 crash on Highway 99 in Fresno County. Six people were killed and dozens more injured when a Greyhound bus smashed into a disabled SUV.

The SUV had crashed and had come to rest on its side blocking at least one lane. The bus hit the SUV about three minutes later, killing all three of its occupants, as well as three people on the bus, including the driver.

The Fresno Bee, citing a coroner’s report, said the 18-year-old driver of the SUV had a blood alcohol level of .11.

Gee, represented by attorney Allen Hassan, filed suit in Sacramento just days before the end of the two-year limitations period. Greyhound moved to transfer the action to Fresno, arguing that venue in Sacramento was not proper, and that even if it was, it would be in the interests of justice to try the case in the county where the events occurred and most of the evidence was located.

Hassan did not oppose the motion or appear at the hearing. He later explained that because most of the suits arising from the crash were brought in Fresno, he assumed the motion would be granted, which it was.

The judge ordered the plaintiff to pay transfer fees. When the fees went unpaid, Greyhound moved to dismiss, pursuant to Code of Civil Procedure §399, and the motion was granted.

Hassan did not file opposition to that motion, nor did he appear at the hearing. He did, however, move to set aside the dismissal under §473(b) in February 2014.

In support of that motion, he declared that he was unaware of the dismissal until he checked with Fresno Superior Court in order to determine why he had not been notified of a trial date. He then checked with the Sacramento court, he said, and learned of the dismissal.

His failure to pay the fees, he explained, was due to his misunderstanding the law and assuming that it was the moving party, not the plaintiff, who had to pay.

Greyhound opposed the motion, arguing that the statute didn’t apply because Hassan offered only an explanation as to why he didn’t pay the fees, not why he didn’t oppose the motion to dismiss; that the motion was in effect a motion for reconsideration, and could not be granted because it did not meet the requirements of §1008, and that Hassan offered no credible explanation for his lack of diligence.

Hight granted the motion, explaining that under §473(b), the sole issue to be determined was whether the dismissal was due to attorney fault, not whether that fault was excusable. Finding no reason to disbelieve Hassan as to the facts, the judge said his client was entitled to relief.

Justice William J. Murray Jr., writing for the Court of Appeal, said there was no error on the part of the trial judge.

Murray distinguished Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, which applied §1008 to a renewed motion for §473 relief after the initial motion was denied based on a finding that the attorney’s declaration lacked credibility. In this case, the justice said, the motion granted by Hight was an original §473(b) motion.

As to Greyhound’s argument that Hassan’s declaration was not credible, it was up to the trial judge to make that determination, Murray said. As to Hassan’s failure to oppose the dismissal, the justice said, that “was not the basis for dismissal identified in Greyhound’s motion to dismiss nor was it the basis for the court’s ruling.”

Since Greyhound sought, and the judge originally granted, dismissal based on failure to pay fees, it was appropriate for Hassan to focus on that issue in his declaration, Murray reasoned.

The case is Gee v. Greyhound Lines, Inc., 16 S.O.S. 5831.


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