Friday, October 19, 2018
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Court of Appeal:
Plaintiff Whose Lawyer Failed to Oppose Demurrer, Admits Fault, Is Entitled to Reinstement of Suit
By a MetNews Staff Writer
Code of Civil Procedure §473(b) entitles a plaintiff whose attorney fails to oppose a demurrer— resulting in a sustaining of the demurrer without leave to amend and an ensuing judgment of dismissal—to a reinstatement of the action where the plaintiff’s lawyer submits an affidavit admitting fault within six months of judgment, the First District Court of Appeal has held.
Justice Mark B. Simons of Div. Five wrote the opinion which explained that a demurrer is essentially a motion for dismissal.
Sec. 473(b) reads, in relevant part:
“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Wrongful Foreclosure Action
The plaintiff in the case sued the defendants Union Bank and Unionbancal Mortgage Corporation, alleging wrongful foreclosure and other causes of action. The defendants demurred.
In his affidavit, plaintiff’s attorney William E. Gilg attested that he attempted to file an amended complaint two days before the hearing on the demurrer, in June 2016. The clerk rejected the filing based on Code of Civil Procedure §472, which allows a first amended complaint to be filed without leave of the court within the time for filing an opposition to a demurrer.
Gilg said that he was unaware of an amendment to §472 which had gone into effect January 2016. Prior to the amendment, a first amended complaint could be filed without leave “after demurrer and before the trial of the issue of law thereon.”
Despite the lawyer’s admission, Contra Costa Superior Court Judge Steven K. Austin denied the defendant’s §473(b) motion.
Simons’ Opinion
Where the admitted mistake of plaintiff’s lawyer results in a dismissal, Simons said, relief is mandatory under the statute. He noted that the Assembly Committee on Judiciary, in its report on the 1992 amendment to the bill which added the term “dismissal” to §473(b), said:
“The State Bar is the source of [this] provision....The Bar states that it is illogical and arbitrary to allow mandatory relief for defendants when a default judgment has been entered against them due to defense counsel’s mistakes and to not provide comparable relief to plaintiffs whose cases are dismissed for the same reason.”
He pointed out that “numerous court of appeal decisions have limited the reach of Section 473(b) as it relates to relief from a ‘dismissal.’ ” The provision does not apply to voluntary dismissals, failure to timely serve a complaint or dismissal for a lapsed statute of limitations, he noted.
“Nevertheless,” Simons added, “the courts uniformly agree the Legislature intended at least ‘to put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.’ ”
A sustained demurrer, without leave to amend, is “the functional equivalent of a default for a plaintiff,” he explained.
The case is Pagnini v. Union Bank, 2018 S.O.S. 5029.
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