Metropolitan News-Enterprise


Friday, April 14, 2017


Page 1


Mandatory Relief Statute Does Not Apply to Failure to File Administrative Record—C.A.


By a MetNews Staff Writer


A statute requiring that a default or dismissal be set aside where the attorney for the party that suffered the result was at fault does not apply to a party whose writ petition/complaint in an environmental case was dismissed because its counsel failed to file the administrative record, the Court of Appeal for this district ruled yesterday.

Presiding Justice Paul Turner said motion for relief, brought under Code of Civil Procedure §473(b) by The Urban Wildlands Group, should have been denied because “[t]he judgment from which plaintiff seeks relief is not a default, default judgment, or dismissal.”

The plaintiff sued the City of Los Angeles Bureau of Street Lighting after it ruled that no further environmental review of a local lighting project was required. Both parties filed briefs, but the plaintiff did not file the administrative record as required, and the judge rejected all of the plaintiff’s arguments.

The plaintiff moved for mandatory and discretionary relief under §473(b). Plaintiff attorney Babak Naficy explained in a declaration that his longtime legal assistant had left, and that the new assistant did not comply with his instruction to lodge the record with the court as soon as she received it.

The assistant said in her declaration that she erroneously believed that the defendant’s certification of the administrative record meant that it had been lodged with the court. The city argued that there was no basis for relief because the plaintiff had already had its opportunity to present the case on the merits.

Los Angeles Superior Court Judge Joanne O’Donnell, since retired, granted the motion, reasoning that Naficy’s mistake had cost his client its day in court. O’Donnell explained that she granted judgment on the merits in the erroneous belief that the excerpts of the record that she had before her were filed by the plaintiff, not the defendant.

Turner, however, cited English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130. In that case, the court said a client whose lawyer made an ill-fated decision to oppose a summary judgment motion on procedural grounds rather than substance wasn’t entitled to have the resulting judgment thrown out on grounds of attorney fault.

The court said a summary judgment is not a “default judgment” within the meaning of the statute.

A number of cases reached results similar to English, Turner noted, while some have applied a broader definition and held that certain types of judgments, such as a summary judgment granted after counsel fails to file opposition and a judgment on reserved issues in a divorce case after a party failed to appear due to counsel error.

Turner said the latter group of cases is smaller, and was wrongly decided.

The Urban Wildlife Group, Turner said, “is in a similar position” to the English plaintiff. Having had the chance to fight its case on the merits, and failing to present sufficient evidence, it did not suffer a default or dismissal and cannot obtain relief under the statute.

The case is The Urban Wildlife Group, Inc. v. City of Los Angeles, B271350.


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