Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of San Diego County, No. 37-2008-00102515- CU-OR-EC Randa Trapp, Judge.
O'ROURKE, J.
Defendants and Appellants Paul Scott and Susan Scott appeal from a postjudgment order in favor of plaintiff and respondent Ramona Land Church (Church) setting aside a judgment of dismissal that had been entered against Church after it failed to timely amend its complaint. Defendants contend the trial court erred by granting the motion under Code of Civil Procedure section 473 because Church did not establish a basis for relief under the statute's "attorney fault" mandatory relief provision, or the provision for discretionary relief based on a party's mistake, inadvertence, surprise, or excusable neglect. We conclude mandatory relief is not available under these procedural circumstances, and based on this record, we cannot imply a factual finding of counsel's excusable neglect. Accordingly, we reverse the order.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Church filed its original complaint in this matter against defendants in December 2008. On October 9, 2009, the trial court sustained defendants' demurrer to Church's first amended complaint and granted Church 10 days leave to amend. Defendants served Church with notice of the order on November 3, 2009. On November 6, 2009, counsel for Church, Thomas Key, filed a "Notice of Temporary Inability to Prepare Pleading or Pay Money, " stating that since he had undertaken to represent Church, the economy deteriorated and his income dropped to zero. He averred that as a result of losing his office and a hard drive "crash" on his computer, he "temporarily lost the ability to access my data, my software programs, my research library..., and my ability to print documents." According to Key, he did not have funds to pay the filing fee for a motion, and he sought to submit notice to the court to "mitigate concerns and facilitate planning." However, Key stated in view of his progress, he believed he could complete the amended pleading "to the date certain of November 17, 2009." Key, however, did not file Church's amended pleading by that date.
On December 1, 2009, defendants' counsel advised Key he would be appearing ex parte on December 3, 2009, to seek dismissal of the action under section 581, subdivision (f)(2). In addition to the faxed notice, defendants' counsel faxed Key papers in support of the application. On December 3, 2009, the superior court granted defendants' ex parte application and entered a judgment of dismissal. The next day, Church filed a motion for leave to amend its complaint, which the superior court denied on January 22, 2009, on grounds it lacked jurisdiction to act.
Under section 581, subdivision (f)(2), the court may dismiss the complaint when "after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal."
The record indicates that in response to this fax transmission, which Key admitted receiving, Key faxed a copy of Church's proposed second amended complaint to defendant's counsel on the evening of December 2, 2009. However, Key did not file Church's motion for leave to amend that pleading until December 4, 2009, after defendants obtained their judgment of dismissal.
In February 2010, Church moved under section 473, subdivision (b) to set aside the judgment of dismissal and for leave to file a second amended complaint on grounds that it was "unable to timely file the amended pleading... due to the mistake, surprise, inadvertence, and excusable neglect of counsel...." Church supported its motion with Key's declaration. Key averred that his practice had deteriorated with the economy and he had to terminate his staff and move out of his office. He stated: "At the time of the Demurrer, I intended to amend the pleading and had permission of the court to do so. However, in the interval, the collapse of my office and emergency work required by other clients who were also in collapse, prevented me from completing the amendment by the calendared deadline. I know of nothing I could have done differently that would have enabled me as a practical matter to complete the pleading by the due date. The best I could do is notify the court of the problems that were forming, and I did so, formally, and with notice to counsel.... The failure to file the amendment by the deadline was due solely to the collapse of my office and the fact that I had no time or resources available to complete the task. [Church] itself did not cause the defalcation and the failure to amend was not due to anything [Church] did or failed to do." Counsel claimed he had advised defendants' counsel on three separate occasions that he temporarily lost his fax capability, had no staff to answer phones, and had no office. According to Key, defense counsel did not indicate he would appear ex parte to obtain a judgment, and defense counsel did so on the same day that Key had faxed him Church's motion for leave to file a late pleading.
Key explained: "I expressly indicated my intentions [to defense counsel], and all of which I then performed, although I was delayed in doing so. I informed him that I was working on the amendment, that the attached exhibits were being improved, and that I would be seeking leave to do so once the deadline had passed. [¶] As to the amended pleading, with no staff, it takes at least a multiple of times longer for me to complete projects, and my ability to estimate completion times is also challenged. I had to do other work to survive financially, and other exigent work for other clients repeatedly intruded. As my other clients collapsed, they required that I lay off their employees, and negotiate new commercial leases on an emergency basis. [¶] I specifically advised [defense counsel] that I temporarily no longer had a fax capability, had no staff to answer phones, and that my office was temporarily collapsed. I estimated at least two weeks past the deadline to complete the work." Key continued: "I was unable to meet that deadline which I estimated in good faith based on what I had accomplished so far in my recovery from the changes in moving my office, my financial collapse and loss of staff, and from a hard-drive crash on my remaining computer two months ago."
Defendants opposed the motion. Asserting that Key was one of Church's founders whose actions should be imputed to Church, and pointing out its motion was not based on the "attorney fault" provisions permitting for mandatory relief, they argued Church was not entitled to discretionary relief under section 473 because Key's failure to seek a continuance, effectively granting Church a unilateral, self-created extension of time, was inexcusable neglect. They also argued Church failed to establish it sought relief in a reasonable period of time.
In March 2009, the superior court tentatively granted Church's motion. Thereafter, the parties orally argued the matter. The superior court confirmed its tentative ruling on grounds there was "an excuse for delay in this court's judgment, and the attorney, Mr. Key, admitted fault, and in that situation the court is obligated to grant the relief. So I've done that." Defendants appeal from the court's order.
DISCUSSION
I. "Mandatory Fault" Provision of Section 473
Defendants contend the trial court erred by granting Church relief under the mandatory attorney fault provision of section 473 because (1) Church did not move for mandatory relief and the court's order granting such relief denied them due process of law; and (2) as a matter of law, the attorney fault provision does not apply to a dismissal under section 581, subdivision (f)(2) for failing to timely file an amended pleading.
See Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225 (Henderson) [referring to provision as the "mandatory" or "attorney affidavit" provision].) That provision of section 473, subdivision (b) provides in part: "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 (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."
We need not reach defendants' first contention that Church did not actually seek mandatory relief under section 473 and, as a result, the superior court's grant of mandatory relief denied them due process of law. Rather, we dispose of defendants' arguments as to mandatory relief on grounds it does not extend to Church as a matter of law given the procedural posture of the matter.
Whether mandatory relief under section 473, subdivision (b) applies to the present matter is a question of law subject to this court's de novo review. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 (Leader).) "The mandatory relief provision of section 473[, subdivision] (b) is a 'narrow exception to the discretionary relief provision for default judgments and dismissals.' [Citation.] Its purpose ' "was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys." ' " (Henderson, supra, 187 Cal.App.4th at p. 226; see also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).) "Section 473, subdivision (b) was never intended to be a 'catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.' " (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483, quoting Huens v. Tatum (1997) 52 Cal.App.4th 259, 263, limited to mandatory relief provisions of section 473 as noted in Zamora, at pp. 256-257.)
In keeping with these principles, appellate courts have limited the mandatory relief provision of section 473, subdivision (b) concerning dismissals to those dismissals that are the procedural equivalent of a default. (Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1070-1072 [discussing cases; relief may be afforded where counsel's failure to appear in opposition to a dismissal motion is the fault of counsel, and in that case the relief afforded to a dismissed plaintiff is comparable to the relief afforded to a defaulting defendant]; Leader, supra, 89 Cal.App.4th at p. 618, 620; see Gotschall v. Daley, supra, 96 Cal.App.4th at p. 484 [mandatory provision does not apply to a dismissal or a judgment that results from counsel's failure to designate an expert witness], Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082 [mandatory relief not available for dismissal under sections 583.210 and 583.250 for failure to serve a complaint within three years]; Huens v. Tatum, supra, 52 Cal.App.4th at p. 264 [mandatory provision inapplicable to voluntary dismissals pursuant to a settlement]; Peltier v. McCloud River R.R. County. (1995) 34 Cal.App.4th 1809 [mandatory relief not applicable to discretionary dismissal for failure to prosecute].)
In Leader, the court held that a plaintiff may not obtain mandatory relief from a dismissal based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, "at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion." (Leader, supra, 89 Cal.App.4th at p. 620.) In Leader, the defendant did not timely file an amended complaint following a sustaining of a demurrer, and later sought to excuse the failure by his counsel's declaration that he had "misplaced" client materials necessary to remedy the pleading deficiencies. The court affirmed the judgment of dismissal, comparing the circumstances in that case to discretionary dismissals for delay in prosecution: " ' "[V]irtually all such dismissals are attorney caused and such a construction [interpreting the mandatory provision of section 473 to encompass such dismissals] would result in a disfavored repeal of the discretionary dismissal statute[s] by implication." ' [Citation.] 'This conclusion is consistent with the narrow view of the Legislature's intent which appellate courts have taken, i.e., that the section's purpose was simply "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." ' " (Leader, 89 Cal.App.4th at p. 620.)
The Leader court concluded that notwithstanding an attorney declaration of fault, the trial court was free to exercise its informed discretion to determine whether to grant leave to amend: "Counsel's declaration concerning his inexcusable neglect and delay thus presented no answer to the issues posed by plaintiffs' motion for leave to amend or by defendants' motion to strike and dismiss. Plaintiffs could only use counsel's declaration of fault as a basis for vacating an entered dismissal, while the court could not enter a dismissal [under section 581, subdivision (f)(2)] until it had exercised its informed discretion on the basis of the showings made in support of the pending motions. [¶] Attorney conduct constituting inexcusable neglect (here including a deliberate decision not to attempt to timely file amended allegations solely due to the temporary absence of supporting evidence) would generally doom to failure any motion for leave to amend...." (Leader, supra, 89 Cal.App.4th at p. 616; see also Matera v. McLeod (2006) 145 Cal.App.4th 44, 65 [Leader holds mandatory relief is not available if the court had exercised discretion in ordering dismissal and the attorney's neglect did not deprive the plaintiff of an opportunity to present evidence and argument in opposition to the dismissal motion].)
Here, the trial court's dismissal order expressly states it granted dismissal "pursuant to Code of Civil Procedure section 581, subdivision (f)(2), " i.e., for Church's failure to timely amend its complaint, not for Church's failure to appear or respond to defendants' dismissal motion. On appeal, Church neither cites to Leader nor attempts to distinguish it. Church has not attempted to explain how or whether it would have opposed defendants' ex parte application for dismissal on grounds any different than those presented in Key's "Notice of Temporary Inability to Prepare Pleading or Pay Money" or its motion to set aside the dismissal. Indeed, Church's brief on appeal focuses on the trial court's discretion to grant relief, not on application of section 473's mandatory provision. Having obtained ex parte notice of the hearing on defendants' dismissal motion, Key had every opportunity to appear and present evidence, but declined to do so. Under these circumstances, we are compelled by Leader to conclude that mandatory relief is not available to Church for the judgment of dismissal entered pursuant to section 581, subdivision (f)(2).
II. Entitlement to Discretionary Relief Provision of Section 473
Defendants contend the court erred by failing to exercise its discretion in considering whether Church was entitled to discretionary relief. They point out that the court's failure to exercise discretion is itself an abuse of discretion. They further contend that remanding the matter to the trial court to exercise its discretion would be futile, as Church did not establish that its failure to amend its complaint and the ensuing dismissal satisfy the legal criteria for section 473, subdivision (b) discretionary relief. They maintain it would have been, and will be, an abuse of discretion on the trial court's part to grant discretionary relief, as Church neither established counsel's mistake, inadvertence, surprise or excusable neglect nor that it sought relief within a reasonable time.
A. Requirements
Unlike mandatory relief, which applies to dismissals that are the procedural equivalent of a default, discretionary relief under section 473, subdivision (b) applies to any judgment, dismissal, order or other proceeding. (Zamora, supra, 28 Cal.4th at p. 254; Henderson, supra, 187 Cal.App.4th at p. 229; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) "Thus, for example, an attorney's failure to meet a procedural deadline is a proper subject of section 473 relief." (Henderson, at p. 229; Huh v. Wang, at p. 1419.)
"To qualify for discretionary relief under section 473[, subdivision ](b), the party seeking relief must show (1) a proper ground for relief, and (2) 'the party has raised that ground in a procedurally proper manner, within any applicable time limits.' [Citation.] The party seeking relief under section 473 must be diligent, i.e., apply for relief within a reasonable time not to exceed six months after the judgment, dismissal, order, or proceeding was taken, and there must not be any prejudice to the opposing party if relief is granted." (Henderson, supra, 187 Cal.App.4th at p. 229.)
We review for abuse of discretion the court's application of the discretionary provision of section 473, subdivision (b). (Zamora, supra, 28 Cal.4th at p. 257.)
" ' "[T]hose affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed." ' " (Id. at pp. 257-258.) We resolve all doubts in favor of Church, the party seeking relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on another point as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65; Zamora, at p. 256; Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1139.)
B. The Record Does Not Permit This Court to Infer Findings of Surprise or Excusable Neglect
To warrant discretionary relief, Church must demonstrate that the inadvertence, mistake, surprise or neglect of its counsel was " 'excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' " (Zamora, supra, 28 Cal.4th at p. 258; Henderson, supra, 187 Cal.App.4th at p. 229.) "In determining whether the attorney's mistake or inadvertence was excusable, 'the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.' " (Zamora, at p. 258, italics omitted.) Thus, discretionary relief is available only from attorney error that is " 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' " (Ibid.)
Church's motion to set aside the judgment of dismissal, and its counsel's declaration, focused on the collapse of counsel's office and the fact he had other clients who had "emergency work" that prevented him from having the time and resources to complete the amendment by the calendared deadline. Indeed, counsel stated his failure to timely file the amendment was "due solely" to these circumstances. In its brief on appeal, Church attributes the inaction to "human frailty" and the "unforeseeable collapse of its counsel's office." It points out its counsel "was temporarily unable to function, and gave notice of the temporary incapacity" during which the dismissal was taken. Church also places much emphasis on defense counsel's asserted failure to give reasonable notice of the application to dismiss the case, leaving Church with "no opportunity to oppose" the application. In a footnote, it apparently claims this is "surprise" that would justify discretionary relief.
These circumstances do not meet any standard for mistake or inadvertence, and Church does not argue such. Accordingly, we examine whether the superior court could reasonably conclude they constituted the sort of "surprise" or excusable neglect warranting discretionary relief. As used in section 473, "surprise" refers to " ' " ' "some condition or situation in which a party... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against." ' " ' " (Henderson, supra, 187 Cal.App.4th at p. 230.) We cannot imply a finding that Church should have been surprised by defendants' ex parte application to dismiss the matter, after Church had failed to amend by the court's deadline and then neglected to amend by its counsel's self-imposed deadline of November 17, 2009. As defendants point out, Key acknowledged receipt of the ex parte papers, which were faxed to his office the evening of December 1, 2009, for hearing on December 3, 2009. Rules of court expressly authorize an ex parte procedure for obtaining a dismissal under section 581, subdivision (f)(2). (Cal. Rules of Court, rule 3.1320(h).)
Nor can we imply a finding of surprise for the "collapse" of Key's office. Key's declaration in support of the motion indicates that he moved out of his office in September 2009, but as late as November 2009, his office still had a staff of three. We agree with defendants' assertion that Key's financial ability to pay was irrelevant. The record discloses that Church had funds to pay its defense. Key averred in his November 6, 2009 "Notice of Temporary Inability [etc.]" (which demonstrates that Key was able at that time to prepare and file some sort of pleading) that his client had committed funds to assist him in proceeding. This demonstrates that Church had funds before the date by which it was to file its amended pleading.
The difficulty with Church's claim of surprise or excusable neglect is that Church did not conform to the procedures it should have followed to ensure it timely filed an amended pleading or obtained a continuance. The record reflects Key was well aware of his obligation to file Church's pleading before the deadline to do so had passed. But while the record shows Key had telephone communications with defendants' counsel and told him he had no staff or fax capability, it does not reflect that Key asked counsel for a continuance to file the pleading, which we conclude a reasonably prudent attorney would have done. Had counsel refused to grant a continuance, Key should have filed a request for a continuance in the superior court rather than his "Notice of Temporary Inability to Prepare Pleading or Pay Money." Likewise, Key could have filed a request for an extension of time to file Church's pleading at the time of defendants' ex parte application to dismiss, without having to file a noticed motion. (Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th 868, 872-875.)
The circumstances here are akin to those in Iott v. Franklin (1988) 206 Cal.App.3d 521, in which the appellate court reversed a trial court order granting defendant relief from default based on excusable neglect where the defendant's attorney on the last day to file an answer left a message with plaintiff's attorney seeking an extension of time to answer but received no response. (Id. at pp. 525-526, 528.) In seeking relief from the ensuing default, the attorney stated he had reasonably relied onthe fact opposing counsel did not deny his request for an extension. (Id. at p. 528.) The appellate court rejected the claim of inexcusable neglect, finding the trial court had erred in granting section 473 relief: " 'It would be absurd to countenance or encourage' unilateral, self-created extensions of time. We, therefore, hold that an attorney who assumes that opposing counsel has granted him extensions of time to file an answer because, in an effort to request such extensions, he has placed phone calls to but not spoken with, written letters to but not received answers from opposing counsel is guilty of inexcusable neglect within the meaning of section 473. Under such circumstances, it is an abuse of discretion for a trial court to grant section 473 relief. [¶] To hold otherwise would 'permit the courts to become a sanctuary for chronic procrastination and irresponsibility on the part of either litigants or their attorneys.' " (Iott v. Franklin, at p. 531; see also Essig v. Seaman (1928) 89 Cal.App. 295, 298 [inexcusable neglect found and relief from default prohibited where counsel knew the last date by which to answer the complaint and "knew, or should have known, that... he could have obtained an extension of time to plead, [but] knowing these facts, he did not ask for an extension of time to plead, and permitted the defendant to default"].)
This court is well aware of the liberal construction to be placed on section 473, and the policy favoring determination of actions on their merits. (Zamora, supra, 28 Cal.4th at pp. 255-256.) We concede any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Huh v. Wang, supra, 158 Cal.App.4th at pp. 1419, 1420, quoting Elston v. City of Turlock, supra, 38 Cal.3d at p. 234.) But the trial court's discretion on these matters is not unbridled (see Essig v. Seaman, supra, 89 Cal.App. at pp. 298-299), and here, there are no facts from which we can infer excusable neglect. By filing his "Notice of Temporary Inability [etc.], " Key presumed that counsel for defendants would accede in allowing Church additional time to file its amended pleading. This is the sort of self-created extension of time found inexcusable in Iott v. Franklin, supra, 206 Cal.App.3d 521. Because we reverse on that ground, we need not reach defendants' contention that Church's motion was not filed in a reasonable amount of time.
DISPOSITION
The order granting Code of Civil Procedure section 473 relief is reversed and the case remanded to the trial court with directions to vacate its order and enter a new and different order denying Church's motion for relief. The court shall reinstate the judgment of dismissal in defendants' favor. Defendants shall recover their costs on appeal.
I CONCUR: BENKE, Acting P. J.
HALLER, J., Dissenting
I respectfully disagree with the majority's determination that the court erred in granting plaintiff relief from the dismissal under the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b) (section 473(b)). Under these provisions, a court is required to vacate a dismissal upon an attorney's timely declaration that the dismissal was caused by the attorney's "mistake, inadvertence, surprise, or neglect." (§ 473(b).) This is precisely what occurred here.
Defendant moved ex parte for a dismissal of the case based on plaintiff's failure to timely file an amended complaint. At the December 3 ex parte hearing, the court had broad discretion to deny the dismissal motion on various grounds, including if it found the reasons for the delay in filing the amendment did not warrant a complete termination of the action. (See Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 874-875.) However, because plaintiff's counsel did not appear at the hearing to explain these reasons, the court dismissed the case without exercising this discretion.
Plaintiff then filed a section 473(b) motion and supported the motion with its counsel's declaration. In the declaration, plaintiff's counsel stated he did not timely file the amended complaint because of the "collapse of [his] office" and he "had no time or resources available to complete the task." He also provided an explanation for his failure to appear at the ex parte hearing: that although he was given notice of the December 3 ex parte hearing by a fax from defense counsel, it was his understanding the hearing would not go forward based on his communications with defense counsel. He said he spoke with defendant's counsel several times regarding the delay in filing the amended complaint, and defense counsel "was very sympathetic" and expressed understanding, and counsel "did not indicate... he intended to appear ex parte to obtain a Judgment." In his declaration, plaintiff's counsel stated that on December 3 he telephoned defense counsel "to let him know the hearing date [for his motion for leave to file a late pleading]" and faxed the motion for his review. Plaintiff's counsel stated: "I was very surprised to discover, approximately a week later, that on that same day I had provided my documents and a request for his stipulation, instead of providing any other response, counsel had gone to court by way of an ex parte and obtained a Judgment of Dismissal." (Italics added.)
Viewing the factual assertions in the declaration in the light most favorable to the court's ruling, this declaration supports that the dismissal was caused by the attorney's "mistake, inadvertence, surprise, or neglect." (§ 473(b).) While it may have been unreasonable for plaintiff's counsel to believe that defense counsel would not attend the ex parte hearing to seek a dismissal and for counsel to be later "surprised" that this hearing had taken place, the fact that counsel's conduct was unreasonable does not preclude relief under section 473(b). (See SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517 (SJP).) Section 473(b) relief is required " 'even if the attorney's neglect was inexcusable.' " (SJP, supra, at pp. 516-517.)
Although we review the court's mandatory relief order de novo, this independent review standard applies only when the facts are undisputed. (See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.) Where the submitted facts are subject to differing interpretations, we defer to the court's resolution of those factual issues and assume the court made all findings and inferences supporting its order.
Section 473(b) mandatory relief provisions apply to relieve the innocent client of the burden of the attorney's fault and avoid precipitating more litigation in the form of malpractice suits. (SJP, supra, 136 Cal.App.4th at p. 516.) The statute seeks to provide relief from dismissals to clients who have done nothing wrong but are denied " 'their day in court' " because of the " 'inexcusable failure to act on the part of their attorneys.' " (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) That is what occurred in this case.
The majority nonetheless finds the statute to be inapplicable based on Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 (Leader). Although superficially the cases seem similar, on closer examination the circumstances are analytically distinct. Leader'sholding and rationale strongly support the trial court's order granting relief in this case.
Section 473(b) affords mandatory relief from a "dismissal, " but the courts have narrowly construed the term dismissal to those rulings that are " 'the procedural equivalent of defaults -- i.e., those which occur because the plaintiff's attorney has failed to oppose a dismissal motion.' " (Leader, supra, 89 Cal.App.4th at p. 618.) In Leader, the court discussed this principle in the context of discretionary dismissals and explained that this narrow interpretation seeks to prevent parties from circumventing discretionary dismissal statutes that permit dismissals only after a court " ' "has evaluated and considered the excuses for delay." ' " (Id. at p. 619.) The court explained: " ' "[T]he Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissal statutes.... 'A plaintiff who has failed to convince the trial court that the prosecution of the case was diligent would have the case dismissed. That same plaintiff would then jump back into court on a section 473 motion, accompanied by an attorney's affidavit of negligence, and have the case reinstated based on the same facts offered, but discarded, in the hearing on the request to dismiss. The Legislature cannot have intended such an absurd result.' "...' " (Ibid.)
Under this reasoning, the Leader court stated that a dismissal is not subject to the section 473(b) mandatory relief provisions where the dismissal was entered "after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion." (Leader, supra, 89 Cal.App.4th at p. 620.) The court explained that the " 'day in court' " envisioned by courts interpreting section 473(b) "is not a guaranteed trial on the merits, but merely the opportunity to appear and present evidence and argument in opposition to the motion to dismiss." (Id. at p. 621.) On the other hand, the mandatory relief provisions do apply where "a dismissal [is] entered [after] a plaintiff fails to appear in opposition to a dismissal motion" and the failure to appear is "the fault of counsel." (Id. at p. 619.) In this latter situation, the " 'relief afforded to a dismissed plaintiff... [is] comparable to the relief afforded a defaulting defendant.' " (Ibid.)
Applying these principles, the Leader court found the court's dismissal was of the first type because the plaintiff's attorney in that case appeared at the dismissal hearing and the trial court evaluated the reasons for delay and found those reasons (counsel's failure to locate facts that would support an amendment to the pleadings) did not justify the plaintiff's failure to timely file the amended pleading. (Leader, supra, 89 Cal.App.4th at pp. 619-620.) The court stated that under these circumstances, where the trial court "considered the reasons for plaintiffs' delay in exercising its discretion under the above statutes, it would be an 'absurd result' indeed to 'have the case reinstated [under section 473(b)] based on the same facts offered, but discarded, in the hearing on the request to dismiss.' " (Ibid.) The court thus concluded that relief was not allowed because counsel's neglect did not prevent the plaintiffs from presenting those reasons for the delay. (Id. at p. 617.)
This case is different. Here, plaintiff did not present reasons for the delay to the court because his counsel failed to attend the ex parte hearing, negligently or mistakenly believing that opposing counsel would not go forward with the hearing and instead would wait to address the merits at the hearing on plaintiff's motion for leave to file the untimely amended pleading. Under the circumstances, the dismissal was the procedural equivalent of a default, and thus triggered mandatory relief under section 473(b).