Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CC05839 Derek W. Hunt, Judge.
Weiner Law Offices and Bruce S. Weiner for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiff Shaun Peterson challenges the trial court’s dismissal of his personal injury action following his attorney’s failure to appear for a hearing on an order to show cause (OSC) re dismissal. Plaintiff contends his attorney’s declaration demonstrated neglect and inadvertence sufficient to require the trial court to vacate the dismissal under Code of Civil Procedure section 473. We agree, and reverse.
All statutory references are to the Code of Civil Procedure.
I
Factual and Procedural Background
On May 5, 2004, plaintiff Shaun Peterson was a passenger in a car driven by a woman he knew only as “Anna.” Peterson alleges that due to Anna’s negligent driving, the car crashed, causing him severe injuries.
Peterson was a college student who at the time did not possess a driver’s license.
Two years later, on May 5, 2006, Peterson sued Anna for damages under the fictitious name “Anna Roe.” In September 2006, Peterson’s counsel filed a case management statement informing the court he had recently discovered Anna’s true identity, and that he would amend the complaint and serve her. At the trial setting conference held the following day, the trial court issued an OSC why it should not dismiss all unserved and undefaulted defendants. The trial court set the OSC hearing for October 13, 2006, approximately six weeks out, to provide Peterson the opportunity to file the amendment, serve the defendant, and secure the defendant’s appearance or default. If Peterson accomplished this before the hearing, the OSC would convert to a trial setting conference.
Peterson did not file the promised amendment, nor did he or his counsel appear at the October 13 OSC hearing. Relying on its inherent authority under Code of Civil Procedure section 583.150, the trial court dismissed the case.
Section 583.150 provides: “This chapter does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court.”
Exactly six months later, on April 13, 2007, Peterson filed a motion under section 473 to set aside the dismissal. Peterson’s counsel supported the motion with a declaration providing the following explanation. “I had just obtained the correct name of the defendant in this case just days prior to the case management conference of September 1, 2006. . . . [¶] I was out of the country . . . from September 15 through October 7, 2006. Service had not been accomplished prior to my leaving. [¶] I was ill for about two weeks when I returned and spent very little time in the office. Somehow I had neglected to calendar the OSC in this case set for October 13, 2006. [¶] I represented plaintiff on another case which settled in 2006. The notice of the court order dismissing the case at bar was inadvertently filed in that case file. [¶] I failed to file the required affidavit and attend the OSC due to inadvertence and neglect. None of that was the fault of my client, plaintiff herein. Defendant has not suffered any prejudice by my failing. [¶] I have been involved in several cases that have either gone to trial or were prepped for trial in the last few months. I only recently heard from my client, who has a tendency to be out of contact with me for months at a time. [¶] I am ready to amend the complaint to name the ‘real defendant’ and serve her as soon as possible with the summons and complaint once the order to se aside the dismissal is entered.”
At the hearing, Peterson’s counsel informed the court that if the dismissal were set aside, he would file the amendment by the end of the day, and serve the complaint within 30 days. The trial court denied the motion.
II
Discussion
Peterson contends the trial court erred in refusing to set aside its dismissal because section 473 creates a mandatory duty to reinstate the case. We agree.
Section 473, subdivision (b), provides in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding 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 answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding 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 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.” (Emphasis added.)
Thus, section 473, subdivision (b), has both a discretionary and a mandatory element. Unlike the discretionary element, a party may obtain mandatory relief even if the attorney’s mistake, inadvertence, surprise, or neglect is not reasonable. (Matera v. McLeod (2006) 145 Cal.App.4th 44, 63.) The purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney’s error and avoid malpractice litigation. (Ibid.) Per the statute, a party seeking mandatory relief must file the application in proper form, and must include an attorney affidavit “attesting to his or her mistake, inadvertence, surprise, or neglect . . . .” (§ 473, subd. (b).) “‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1415.)
In providing mandatory relief, “the Legislature created a narrow exception to the discretionary relief provision for default judgments and dismissals.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Thus, some courts have not read the term “dismissal” in the mandatory element of section 473 expansively, and limited its application to dismissals resulting from a party’s failure to oppose a motion to dismiss.
For example, in Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1564 (Tustin), the trial court granted a motion to dismiss for failure to prosecute under section 583.410. The appellate court affirmed, explaining that the plaintiff was not entitled to mandatory relief from dismissal under section 473 because the plaintiff had opposed the motion to dismiss. The majority recognized that the Legislature enacted section 473 to ease the harsh impact on a defendant who failed to respond to the lawsuit, and later amended the provision to offer “this same relief to a ‘defaulting’ plaintiff, i.e., a chance to respond to an otherwise unopposed request for dismissal.” (Tustin,at pp. 1566-1566.) The court reasoned that a plaintiff who had opposed a section 583.410 dismissal motion has already had his or her “‘day in court’” and should not be allowed a “second bite.” (Tustin, at p. 1566.) The court further noted that allowing plaintiffs to “jump back into court on a section 473 motion” after an unsuccessful opposition to a discretionary dismissal motion would be an absurd result unintended by the Legislature. (Tustin, at p. 1566.) Thus, the court concluded that the only avenue of review for a plaintiff who opposed and lost a section 583.410 dismissal motion was appeal. (Tustin, at p. 1566.)
Section 583.410 provides: “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.”
Graham v. Beers (1994) 30 Cal.App.4th 1656, 1661, agreed with Tustin’s majority, and concluded “the Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissal statutes.” (Id. at p. 1661.) The court reasoned that “[i]f the Legislature had intended to abrogate section 583.410 through its enactment of the amendments to section 473, it would have said so.” (Ibid.)Similarly, in Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, the court reviewed section 473’s legislative history and agreed with Tustin and Graham that the Legislature intended to provide mandatory relief for plaintiffs only in circumstances comparable to those in which defendants were entitled to mandatory relief. (Peltier, at pp. 1818–1822.)
Here, the trial court issued an OSC and dismissed the action based on its inherent authority under section 583.150. Peterson, however, did not oppose the OSC or appear at the hearing. Thus, Peterson falls into the category of a “defaulting” plaintiff, a situation similar to a plaintiff who fails to respond to a section 583.150 dismissal motion, or a defendant who fails to respond to a complaint. Peterson submitted his section 473 motion in the proper form, supported by his attorney’s declaration demonstrating inadvertence. True, the declaration stated Peterson’s attorney had “only recently heard from [his] client, who has a tendency to be out of contact with [the attorney] for months at a time.” But this statement alone is insufficient to support a finding that the client was at fault for the attorney’s failure to oppose the OSC or appear at the hearing. We recognize Peterson delayed bringing his section 473 motion until exactly six months after the trial court dismissed the action. The mandatory provision in section 473, however, does not require a party to make the motion within a reasonable time, but only to file it “no more than six months after entry of judgment . . . .” (§ 473, subd. (b).)
Accordingly, the trial court erred in failing to set aside the dismissal, even if it concluded the neglect of Peterson’s attorney was “inexcusable.” We therefore reverse the judgment, and reinstate Peterson’s complaint.
III
Disposition
The judgment is reversed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.