Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-260212, William D. Palmer, Judge.
B.C. Barmann, Sr., County Counsel and Jennifer Esquivel Zahry, Deputy County Counsel for Defendant and Appellant.
Rios & Associates and Ralph M. Rios for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant appeals from an order vacating the judgment of dismissal of plaintiff’s complaint. We conclude plaintiff failed to demonstrate that his motion to set aside the dismissal was timely filed or that entry of the dismissal was the result of attorney neglect. We therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 2007, the court entered an order sustaining defendant’s demurrer to plaintiff’s complaint with 20 days leave to amend. On June 15, 2007, defense counsel faxed plaintiff counsel a letter contending the first amended complaint was still defective. On June 16, plaintiff’s attorney agreed and represented he would further amend the pleading within 10 days. The parties thereafter stipulated that the first amended complaint was defective and plaintiff would have until June 26, 2007, to file a second amended complaint. Plaintiff did not file a second amended complaint.
On August 1, defendant served and filed its case management statement, which pointed out that the second amended complaint had not been filed and was overdue. On August 7, plaintiff filed his case management statement, which did not mention the status of the pleadings.
On August 6, defendant served and filed an ex parte application to dismiss the complaint, based on plaintiff’s failure to timely file the second amended complaint. On August 8, the court granted defendant’s application for dismissal, without prejudice; defendant served notice of entry of that order on plaintiff. On August 17, the court entered a judgment of dismissal without prejudice; defendant served notice of entry of judgment on plaintiff.
On February 6, 2008, plaintiff apparently attempted to file by fax a motion for relief under Code of Civil Procedure section 473. The record contains only the first page of the motion, on which a file stamp reflecting that date is crossed out, and a court clerk’s document, dated March 13, 2008, which indicates the clerk returned the document because the filing fee was not paid and there was no notice of motion or date, time and location for the hearing.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On February 29, 2008, plaintiff submitted for filing a notice of motion and motion for order setting aside the dismissal, which reflected a hearing date of March 31. A court clerk’s document, dated March 13, 2008, indicates the clerk filed the motion, but notified plaintiff the hearing was set for a holiday and the hearing time was incorrect. Amended notice was given, and the motion was heard on April 3. The court noted it had not received any points and authorities in support of the motion, and the motion was not timely filed within the six-month period of section 473. It denied the motion without prejudice.
On May 9, 2008, plaintiff filed an “amended” motion to set aside the dismissal, accompanied by a declaration of counsel stating plaintiff’s failure to file a second amended complaint was caused by the attorney’s mistake and neglect. Plaintiff asserted that the original motion was timely submitted for filing on February 6, but “for unknown reasons” the clerk did not file it until February 29, 2008. On this basis, plaintiff argued the motion was timely filed.
At the hearing, the court concluded the motion submitted on February 6 was filed, despite the clerk’s action, and was therefore timely. It rejected defendant’s argument that defendant had never received that motion and therefore had not been served with it, because plaintiff produced at the hearing and lodged with the court a proof of service showing service on defendant by mail on February 6, 2008. The court also rejected defendant’s argument the February 6 motion, as filed and served, was insufficient, because it did not include a notice of motion and did not give notice of any date, time, or place for the hearing. The court granted the motion for relief based on the affidavit of attorney fault, and allowed the second amended complaint to be filed. Defendant appealed from that order.
DISCUSSION
I. Appealable Order
An appeal may be taken from an order granting a statutory motion to set aside a dismissal if the underlying judgment sought to be vacated is an appealable final judgment. (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628.) The order granting plaintiff’s motion is appealable.
II. Standard of Review
Relief from dismissal was granted pursuant to section 473, subdivision (b), which provides:
“The court may, upon any terms as may be just, relieve a party … from a … dismissal … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the … pleading proposed to be filed therein, … and shall be made within a reasonable time, in no case exceeding six months, after the … dismissal … was taken.… Notwithstanding any other requirements of this section, the 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 … resulting … dismissal entered against his or her client, unless the court finds that the … dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).)
This section provides for two distinct types of relief: mandatory and discretionary. An order granting relief under the discretionary relief provisions of section 473 is reviewed for abuse of discretion. (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) Where a dismissal is set aside pursuant to the mandatory relief provisions of section 473, and the applicability of the mandatory relief provisions does not turn on disputed facts but presents a pure question of law regarding whether the prerequisites to such relief were met, review is de novo. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516 (SJP).) Where mandatory relief is granted and the issue on appeal turns on factual determinations made by the trial court, the substantial evidence standard of review applies. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927-928 (Benedict).) In substantial evidence review, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
III. Timeliness of Motion for Relief
A motion for mandatory relief under the attorney fault provision of section 473, subdivision (b), must be filed within six months after entry of the dismissal. A person seeking relief from a judgment pursuant to section 473 bears the burden of proving by a preponderance of the evidence that he or she is entitled to the relief requested. (Deschamps v. Independent Cab Co. (1949) 94 Cal.App.2d 127, 135; Rambush v. Rambush (1968) 267 Cal.App.2d 734, 743.)
The judgment of dismissal was entered on August 17, 2007. The six-month period for seeking relief from the dismissal expired on February 17, 2008. The court found plaintiff’s motion for relief was timely filed on February 6, 2008, based on the submission of a motion to the court clerk for filing on that date and the court’s belief that “the clerk can’t unfile things.” The court granted the motion, however, based on the showing made in the papers filed on May 9, 2008, not on the showing made in the papers it concluded were filed on February 6, which were not before the court.
“‘A court … is without jurisdiction to set aside a judgment … if no notice is given to adverse parties whose rights would be affected by the order.’” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 289 (Moghaddam).) The notice of motion must be in writing and “must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (§ 1010.) The opening paragraph of the notice must state “the nature of the order being sought and the grounds for issuance of the order.” (Cal. Rules of Court, rule 3.1110(a).) The first page of each paper filed must reflect the date, time and location of the hearing, and the nature or title of any attached documents. (Cal. Rules of Court, rule 3.1110(b)(1), (2).) The motion must include at least the notice of hearing of the motion, the motion itself, and a memorandum of points and authorities in support. (Cal. Rules of Court, rule 3.1112(a).) “A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion.” (§ 1005.5.)
A motion may be denied if the notice of motion fails to state the date and time of the hearing. In Bohn v. Bohn (1913) 164 Cal. 532 (Bohn), defendant filed a motion for change of venue, without specifying a time for the hearing of the motion. The court concluded a change of venue must be sought by noticed motion, and such notice was required by section 1010 to state when the motion would be heard. The court stated:
“‘In the present matter, if the formal motion which appellant served on the attorneys for plaintiff be treated as a notice of motion, it was radically defective as such in the very essential particular that it did not state any time when the motion would be made or brought on for hearing, and for that reason the motion for a change of the place of trial was properly denied.’” (Bohn, supra, 164 Cal. at pp. 536-537.)
The court rejected defendant’s argument that the motion should be saved by a liberal construction of the venue statute. “‘The rule of liberal construction may not be applied to excuse a failure to adopt the rules of necessary procedure under which alone the remedy may be invoked.’” (Bohn, supra, at p. 537.)
In Holtkamp v. States Marine Corp. (1958) 165 Cal.App.2d 131, the court granted defendant’s motion to quash service of summons on the ground the court lacked personal jurisdiction of defendant. On appeal, plaintiff argued the motion should not have been granted because the notice of motion did not specify a date for hearing; it stated only that the motion would be heard at the time designated by the clerk. After plaintiff’s opposition to the motion had been filed, however, defendant had served a notice of hearing, notifying plaintiff of the date, time, and location of the hearing. Although the original notice of motion was defective, the defect was cured by the subsequent notice of hearing. The court concluded: “The first notice may be disregarded and the second considered as the proper notice of motion. So far as the record shows, such motion was timely filed. There is no evidence in the record to show that plaintiff objected in the trial court to the timeliness of the motion.” (Id. at p. 135.) Thus, a defect in a notice of motion may be cured by a subsequent proper notice, if it is timely served and filed.
Section 1010 requires that a notice of motion state the grounds on which the motion is made; “this section has been construed to mean that the trial court may consider only such grounds as are specified in the motion.” (Castagnoli v. Castagnoli (1954) 124 Cal.App.2d 39, 41 (Castagnoli).) In Luri v. Greenwald (2003) 107 Cal.App.4th 1119, plaintiff filed a motion for section 473 relief after she failed to file timely opposition to defendant’s motion for summary judgment and summary judgment was granted. Plaintiff did not serve or file a notice of the motion for relief. Her memorandum of points and authorities requested section 473 relief on the basis of excusable neglect only – a ground for discretionary relief. The motion was accompanied by a declaration of counsel suggesting attorney fault. The court noted the general rule that the trial court may consider only the grounds stated in the notice of motion, but added that “a trial court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court may treat the supporting papers as curing the defective notice.” (Luri, supra, 107 Cal.App.4th at pp. 1126-1127.) Because the motion was based only on excusable neglect, and the parties treated it as a motion for discretionary relief, the court concluded the defendants lacked fair notice of a possibility of relief under the mandatory provision, and the trial court reasonably treated the motion as seeking only discretionary relief. (Id. at p. 1128.) Similarly, the court in Castagnoli held that, where the notice of motion requested relief only on grounds set forth in section 473, but the motion was filed after the six-month period for granting statutory relief had passed, relief could not be granted on equitable grounds. (Castagnoli, supra, 124 Cal.App.2d at p. 41.)
All applications for relief under section 473 must be made within the statutory six-month period. (Northridge Financial Corp. v. Hamblin (1975) 48 Cal.App.3d 819, 825.) Where a second motion for relief is brought, whether it is considered a new motion or a renewal of the first motion which was denied, it must be filed within the six-month period. (Ibid.)
A. February 6, 2008, submission
The only moving papers that were arguably filed with the court before the February 17 expiration of the six-month period were the papers tendered on February 6, 2008. In support of his May 9, 2008, motion, plaintiff presented a fax filing receipt, showing that an 18 page document was faxed to the court on that date. Specifically, it indicates the document consisted of a civil case cover sheet, second amended complaint, motion for relief, declaration of Ralph Rios, and a proof of service.
The only portion of the document tendered for filing on February 6, 2008, that is in the appellate record is a single page, which bears the title “Plaintiffs’ Motion for Relief under Code of Civil Procedure 473; Declaration of Ralph M. Rios; Attachment - Second Amended Complaint.” The portion of the first paragraph appearing on that page states: “Pursuant to Code of Civil Procedure 437(b) [(sic)], plaintiffs seek relief for their failure to file an opposition to Defendant’s demurrer in this matter. This motion for relief is based....”
Both the fax filing information submitted by plaintiff and the title of the document in the record indicate no notice of motion was included with the motion submitted. The motion submitted did not bear a hearing date, time, or location. The document in the record does not reflect that plaintiff requested relief from the dismissal of his complaint, but rather that he requested relief from a failure to oppose defendant’s demurrer. The grounds for plaintiff’s motion for relief are not set out in the portion of the motion in the record.
After he learned the court did not have the February 6 motion in its files, plaintiff did not furnish the trial court with a complete copy of the motion that was submitted for filing on February 6. Since it was submitted for filing by fax, presumably the original document remained in the possession of plaintiff’s counsel. Nonetheless, it was not presented in connection with the May 9 motion for relief, and so the trial court was unaware of the actual content of the February 6 motion at the time it ruled on the May 9 motion. Thus, plaintiff failed to demonstrate what motion he timely filed.
B. February 29, 2008, filing
On February 29, 2008, plaintiff filed with the court by fax a document entitled: “Notice of Motion and Motion for an Order Setting Aside Dismissal; Memorandum of Points and Authorities; Declaration of Ralph M. Rios.” The notice specified a hearing date of March 31, and stated plaintiff “will move the court for an order setting aside Request to Dismiss With Prejudice pursuant to Code of Civil Procedure section 473. [¶] The motion will be made on the grounds that the Request to Dismiss with Prejudice was entered due to mistake, inadvertence or excusable neglect pursuant to Code of Civil Procedure section 473.” Despite the document’s title, the filing did not include any memorandum of points and authorities or supporting declaration.
Defendant opposed the February 29 motion in part on the ground it was not timely served and filed within the six-month period. Despite the challenge to the timeliness of his motion, plaintiff did not reply to defendant’s opposition with evidence or argument regarding its timeliness. At the hearing, when the court indicated both that it had no memorandum of points and authorities in support of the motion and that there was no showing of excuse for failing to file the motion within the six-month period, plaintiff counsel argued that the motion was timely served and filed on February 6 and asserted he had proofs of service and declarations to that effect. The court indicated it would require further briefing before it would determine whether there was some excuse or explanation that would permit it to hear the motion even though the clerk had rejected it originally. Plaintiff’s counsel did not ask for a continuance to permit him to file his memorandum of points and authorities and declaration, or to permit further briefing or submission of evidence on the issue of the timeliness of the motion, while preserving the filing date of the motion. The court denied the motion without prejudice, and plaintiff filed another motion on May 9, 2008.
C. May 9, 2008, motion
On May 9, 2008, plaintiff filed an “amended” motion for relief under section 473. The notice of amended motion stated that the motion was made on the ground the dismissal “was entered due to mistake, inadvertence or excusable neglect pursuant to Code of Civil Procedure section 473.” The accompanying memorandum of points and authorities, however, argued relief was mandatory because plaintiff’s attorney’s acts caused the dismissal. The supporting declaration of attorney Ralph Rios asserted the failure to file a second amended complaint was caused by “the mistake, neglect and excuse of Plaintiff’s attorneys.”
The May 9 motion set out relevant dates, but completely omitted any mention of the clerk rejecting or “unfiling” the February 6 motion and of plaintiff submitting a notice of motion for filing on February 29. The memorandum of points and authorities, the declaration of Rios’s assistant, Miriam Espinosa, and plaintiff’s reply brief all suggested plaintiff’s counsel submitted a motion on February 6, that motion set the hearing for a holiday, and the court clerk filed that motion on February 29. The document filed on February 29, however, is a notice of motion bearing a February 28 date next to counsel’s signature; it is accompanied by a proof of service dated February 29, and each page of the notice has a February 29, 2008, date across the top, apparently a result of the fax filing process. The record contains no documents that indicate they were submitted for filing on February 6, but were filed on February 29. Rather, it contains records indicating the documents submitted for filing on February 6 were returned to plaintiff, and the only document filed on February 29 was the notice of motion dated February 28, without supporting papers.
Also included with the motion was a proof of service dated February 6, 2008.
The single page of the February 6 motion appearing in the record bears a similar date of February 6, 2008, across the top of the page. The May 9 motion, which also indicates it was filed by fax, bears a similar date of May 9, 2008, across the top of each page.
Defendant opposed the May 9 motion, again arguing that the motion was not timely served or filed, and that the failure to file a second amended complaint that led to the dismissal of plaintiff’s action was not, in fact, caused by plaintiff counsel’s neglect as asserted in the Rios declaration.
At the hearing of the May 9 motion, the court permitted plaintiff to lodge a proof of service showing the February 6 motion had been served on defendant on that date by both fax and mail. Defendant denied it had received the motion by either delivery method, and denied that it had consented to service by fax. Based on the proof of service, the court concluded the motion had been served on defendant. It also concluded the motion had been filed on February 6, because the clerk had file stamped it and was not authorized to “unfile” a document. The court determined the showing of attorney fault was sufficient, and granted mandatory relief on that basis.
D. Analysis
There was no substantial evidence before the trial court from which it could conclude that plaintiff filed a timely and sufficient motion for relief from the dismissal of his complaint. Plaintiff did not submit evidence that a motion for relief on the ground of attorney fault was filed on February 6, 2008. While plaintiff demonstrated that a document entitled “Plaintiffs’ Motion for Relief under Code of Civil Procedure 473; Declaration of Ralph M. Rios; Attachment - Second Amended Complaint” was faxed to the court for filing on February 6, he did not make any showing that the motion filed on that date included a notice of motion specifying the date and time of the hearing, sought to set aside the dismissal of his complaint, or based the request for relief on the ground of attorney fault. Plaintiff presented no evidence that a timely notice of motion was filed or served. The single page of the motion remaining in the court file indicates plaintiff requested relief from failing to oppose defendant’s demurrer, not from the dismissal of the action for failing to file a second amended complaint. The paper submitted on February 6 does not indicate the grounds on which the motion was to be made. In his May 9 motion, plaintiff did not present to the trial court any of the papers that were tendered for filing on February 6 to establish the nature of the motion or the grounds on which that motion was to be made.
Even if the February 29 filing is considered to be a notice of motion intended to cure the defect in the February 6 motion by giving notice of the hearing date, it cannot cure that defect because the February 29 notice was not timely filed within the six-month period for requesting relief and defendant objected to the motion on the ground it was untimely. Additionally, no memorandum of points and authorities or declaration was filed with that notice of motion. Thus, the court still had before it no evidence or argument establishing any basis for granting a motion for relief under section 473, subdivision (b).
The motion filed May 9, 2008, was not timely as a motion for relief from the dismissal on statutory grounds. It was filed almost three months after the expiration of the six-month period for filing a motion for relief under the statute. Even if it is considered as a renewal of an earlier motion to vacate the dismissal, the motion was required to be filed within the six-month period after entry of the dismissal. (Northridge, supra, 48 Cal.App.3d at p. 825.) That period ended on February 17.
The May 9 motion did not establish that a timely and sufficient motion to set aside the dismissal had been presented previously, but was erroneously rejected by the clerk or denied by the court. Plaintiff failed to present any papers from the February 6 motion; thus, he failed demonstrate that the motion tendered for filing during the six-month period was a motion to set aside the dismissal, or that it established statutory grounds for relief from the dismissal.
Consequently, plaintiff failed to carry his burden of demonstrating that he timely moved to set aside the dismissal. The trial court had no substantial evidence before it from which it could conclude a statutory motion for relief from dismissal on the ground of attorney fault was timely filed. The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed. (Stevenson v. Turner (1979) 94 Cal.App.3d 315, 318.) Accordingly, the trial court had no jurisdiction to grant plaintiff’s motion for statutory relief due to his failure to demonstrate that a sufficient motion for such relief was filed within the six-month period.
An exception is recognized where the judgment is void on the face of the record. (Stevenson, supra, 94 Cal.App. at p. 318.) Plaintiff does not contend the judgment is void.
IV. Showing of Attorney Fault
Even if the May 9 motion had been timely filed, plaintiff’s showing of attorney fault was inadequate under the statute. Under the attorney fault provision of section 473, “the 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 … resulting … dismissal entered against his or her client, unless the court finds that the … dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b), italics added.) “‘Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.’ [Citation.]” (SJP, supra, 136 Cal.App.4th at pp. 516-517.) The “unless” clause of the mandatory provision in section 473, subdivision (b), is both a credibility testing device and a causation testing device. (Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 867.) “The only question is whether or not the dismissal was in fact caused by attorney neglect rather than, for example, actions of the client or an intentional strategic decision.” (Yeap v. Leake (1997) 60 Cal.App.4th 591, 601.) “An act is a cause in fact if it is a necessary antecedent of an event.” (Benedict, supra, 87 Cal.App.4th at p. 929.)
The omission that led to the dismissal of plaintiff’s action was the failure to file a second amended complaint by June 26, 2007. The declaration of attorney Rios which accompanied the May 9 motion did not address or explain that omission. The Rios declaration stated that, “[o]n or about late July 2007,” his partner Stephen King left the firm without warning. A case list of the firm’s cases was created, but plaintiff’s case was not included in the list; it was “the mistaken understanding” that King would handle plaintiff’s case. Because plaintiff’s case was not on the list, “no work was done on the case and nothing was done to rectify the failure of Plaintiffs to file the necessary motions.” The mistake was discovered when plaintiff called the Rios firm to ask about the status of the case, and the Rios firm “immediately filed this motion.”
The declaration does not specify whose mistaken understanding this was.
The declaration did not explain anything that occurred prior to “late July 2007.” Thus, it did not explain plaintiff’s failure to file a second amended complaint by June 26, 2007. Defense counsel wrote to Rios on June 15, 2007, asking for the filing of a second amended complaint to cure defects appearing in the first amended complaint. Rios replied on June 16, agreeing to amend within 10 days. On June 20, defense counsel sent Rios a stipulation providing that plaintiff would file a second amended complaint by June 26. Rios signed the stipulation, apparently on June 21, 2007, just five days before the pleading was due. Rios’s declaration does not explain why the second amended complaint was not filed by June 26, 2007, as agreed.
Although Rios’s signature is dated “7/21/07,” the stipulation was entered as a court order on June 27, 2007, so the July date appears to be in error.
As to the subsequent entry of an order of dismissal on August 8, 2007, the Rios declaration is vague regarding when the case list was created, when work on the file stopped, and when the mistake was discovered. Defense counsel declared, without dispute, that on July 27, 2007, she telephoned Rios and left a message asking why the second amended complaint had not yet been filed; she received no response. She also declared without dispute that, on or about August 7, she received a telephone call from Rios’s office, inquiring when the hearing of the ex parte application to dismiss would be held, and on August 15 she received another call asking whether she would be attending the case management conference. Plaintiff’s case management statement, signed by Rios, was filed on August 7, 2007. Thus, at least as of August 7, the day before the dismissal order was entered, Rios continued to work on the case and his office was aware of the application for dismissal.
The attorney fault declaration failed to establish that the attorney’s mistake of leaving plaintiff’s case off the firm’s case list was an actual cause of the failure to file a second amended complaint prior to June 26 or prior to entry of the dismissal. Consequently, even if the motion had been timely filed, the requirements for mandatory relief were not met.
V. Equitable Relief
Plaintiff argues that, if statutory relief was improperly granted, he was still entitled to equitable relief. When a motion to vacate a default judgment or dismissal is made more than six months after entry of judgment, it is not directed toward the court’s statutory power to grant relief under section 473; instead, it is directed toward the court’s inherent equity power to grant relief from a default judgment or dismissal procured by extrinsic fraud or mistake. (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 314.) “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) “‘Extrinsic mistake involves the excusable neglect of a party. [Citation.] When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. [Citation.] Reliance on an attorney who becomes incapacitated, or incompetence of the party without appointment of a guardian ad litem, are examples of extrinsic mistake.’” (Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.)
To qualify for equitable relief on the ground of extrinsic fraud or mistake, the moving party must satisfy a three-part test: the moving party must (1) demonstrate it has a meritorious case, (2) articulate a satisfactory excuse for not presenting a claim or defense in the original action, and (3) demonstrate diligence in seeking to set aside the default once it was discovered. (Moghaddam, supra, 142 Cal.App.4th at pp. 290-291.) The circumstances justifying equitable relief, however, must have occurred before entry of the challenged judgment. (Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1395.)
As discussed above, however, the declaration submitted in support of plaintiff’s May 9 motion did not establish that the mistake he contends caused the dismissal of the complaint occurred prior to, or was the cause of, the entry of the dismissal. Additionally, the May 9 notice of motion did not request equitable relief, and no attempt was made to show that plaintiff had a meritorious case. Consequently, plaintiff did not make the showing necessary for equitable relief.
DISPOSITION
The June 23, 2008, order granting plaintiff’s motion to set aside the dismissal and deeming the second amended complaint filed is reversed. Defendant shall recover its costs on appeal.
WE CONCUR: ARDAIZ, P.J. DAWSON, J.