Monday, July 13, 2026
Page 3
Court of Appeal:
‘Mandatory Relief’ Unavailable Where Lawyer Disbelieved
Opinion Says Code of Civil Procedure §473 Does Not Compel Setting Aside Dismissal Where Judge Finds Attorney’s Affidavit of Fault Lacks Credibility and Such Determination Is Not Arbitrary or Unreasonable
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has affirmed a judgment of dismissal, rejecting the plaintiff’s contention that the trial judge improperly disregarded the mandatory-relief provision of Code of Civil Procedure §473—which applies where an attorney files an affidavit of fault—saying there was a supportable basis for the conclusion that the lawyer lacked credibility.
Sec. 473 provides that a judge must grant relief where a timely application is made, in proper form, “accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect” as the cause of a dismissal “unless the court finds that the…dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
The unpublished opinion, filed Thursday, upholds a judgment in favor of defendants in a legal malpractice action, declaring that Orange Superior Court Judge Kimberly A. Knill was entitled to discount a declaration by the attorney for plaintiff Melissa Beck. That attorney, Natalie A. Panossian-Bassler—whose office is in Moorpark, located in Ventura County—took the blame for her nonappearance at a hearing on the client’s failure to prosecute, while maintaining that she did not receive the emailed notice of the proceeding.
Argument on Appeal
Represented on appeal by Manhattan Beach attorneys James Decker and Griffin Schindler, Beck argued:
“The trial court erred. Relief under section 473 is mandated so long as (1) the attorney attests to his or her error (regardless of the reason for the error); and (2) there is a causal relationship between the error and the dismissal….The courts have also held that an involuntary dismissal for failure to appear or oppose a motion is, in fact, subject to the mandatory provision of section 473….
“Accordingly, the error from Beck’s attorney qualifies for mandatory relief under section 473. The trial court committed reversible error in determining otherwise…..”
Schwarm’s Opinion
Authoring the opinion affirming the judgment was Orange Superior Court Judge Walter P. Schwarm, sitting on assignment. He wrote:
“[T]he trial court’s credibility determination—and thus its determination that Beck’s attorney’s failure to appear for the OSC hearing was not due to mistake or neglect—was founded on evidence it saw in its own file which tended to refute the averments made in the declaration. Namely, the court noted Beck’s attorney had appeared at other hearings when the notice was e-mailed to the very same address as the notice for the OSC hearing.”
The pro tem justice went on to say:
“[T]he trial court’s finding regarding the credibility of the declaration from Beck’s attorney was not arbitrary or unreasonable. The court had an evidentiary basis from the court’s records that contradicted the assertion that Beck’s attorney had not received notice of the OSC. As such, we defer to the trial court’s determination of credibility.
“Once the trial court rejected the assertion that Beck’s attorney failed to appear because she did not receive notice, the declaration no longer supported a conclusion that the dismissal was the result of mistake, inadvertence, surprise, or neglect. Therefore, the court properly denied Beck’s motion to set aside the dismissal.”
The case is Beck v. Stabile & Moshtael, G065460.
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