Opinion
B224952
12-06-2011
MICHELE DIETZ, Plaintiff and Appellant, v. THE MEGA LIFE AND HEALTH INSURANCE COMPANY, et al., Defendants and Respondents.
Stuart Law Firm, Antony Stuart; Law Offices of George A. Gallegos and George A. Gallegos for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Andre J. Cronthall, Fred R. Puglisi and Catherine LaTempa for Defendant and Respondent The Mega Life and Health Insurance Company. Pfeiffer Thigpen Fitzgibbon & Ziontz, Jon Pfeiffer and Kimberly L. Thigpen for Defendant and Respondent The National Association for the Self-Employed. Ochrach Law Group and Jeffrey H. Ochrach for Defendant and Respondent Harold Wilson. Brown White & Newhouse, Thomas M. Brown, George P. Schiavelli, Kenneth P. White and Nannina L. Angioni for Defendants and Respondents Phil Quinn, Quinn Division, David Mack and Mack Region.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC371837)
APPEAL from a judgment of the Superior Court of Los Angeles County, Kevin C. Brazile, Judge. Affirmed.
Stuart Law Firm, Antony Stuart; Law Offices of George A. Gallegos and George A. Gallegos for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Andre J. Cronthall, Fred R. Puglisi and Catherine LaTempa for Defendant and Respondent The Mega Life and Health Insurance Company.
Pfeiffer Thigpen Fitzgibbon & Ziontz, Jon Pfeiffer and Kimberly L. Thigpen for Defendant and Respondent The National Association for the Self-Employed.
Ochrach Law Group and Jeffrey H. Ochrach for Defendant and Respondent Harold Wilson.
Brown White & Newhouse, Thomas M. Brown, George P. Schiavelli, Kenneth P. White and Nannina L. Angioni for Defendants and Respondents Phil Quinn, Quinn Division, David Mack and Mack Region.
I. INTRODUCTION
Plaintiff, Michele Dietz, appeals from a judgment of dismissal. Plaintiff's counsel failed to timely file an amended complaint following an appeal. Plaintiff's counsel declared he was ignorant of the applicable statutory deadline. The trial court dismissed the action. The court denied plaintiff's subsequent request for relief from the dismissal under Code of Civil Procedure section 473, subdivision (b).
The judgment is in favor of The Mega Life and Health Insurance Company, The National Association for the Self-Employed, Harold Wilson, Phil Quinn, Quinn Division, David Mack and Mack Region.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
On appeal, plaintiff argues she was entitled to mandatory relief from the dismissal under section 473, subdivision (b). She relies solely on the mandatory relief provision of section 473, subdivision (b). We conclude the mandatory relief provision is inapplicable. Accordingly, we affirm the judgment.
II. BACKGROUND
Plaintiff filed a complaint for damages alleging defendants sold her a worthless health insurance policy and as a result she became liable for substantial medical expenses and suffered emotional harm. The trial court sustained demurrers without leave to amend and plaintiff appealed. This court reversed, remanded and provided plaintiff the opportunity to amend the complaint. (Dietz v. Healthmarkets USA (Feb. 18, 2009, B204765) [nonpub. opn.].)
Upon remand, plaintiff's counsel failed to file an amended complaint within 30 days as required by section 472b. Defendants moved to dismiss the action for failure to comply with section 472b. Plaintiff opposed the dismissal motions arguing equitable principles and relying on the discretionary relief provision of section 473, subdivision (b). Plaintiff's counsel declared he had been ignorant of the statutory deadline. Both sides appeared and argued the merits of the motion. The trial court granted defendants' dismissal motions and entered a judgment of dismissal.
The discretionary part of section 473, subdivision (b) states: "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."
Plaintiff sought relief from the dismissal judgment under the mandatory relief provision of section 473, subdivision (b). Her attorney once again declared the failure to timely file an amended complaint was due to his ignorance of the 30-day time limit in section 472b. The trial court denied the motion.
III. DISCUSSION
Section 473, subdivision (b) contains both a discretionary and a mandatory relief provision. Plaintiff relies solely on the mandatory relief provision, which states: "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." Whether the mandatory relief provision applies in the present case is a question of statutory construction, which we review de novo. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
The mandatory relief provision only applies to dismissals that are the procedural equivalent of a default. (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 482-483; In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1443-1444.) Thus, if a dismissal is entered after a hearing on a noticed and opposed motion which requires the trial court to evaluate in its discretion the reasons for the delay—such as where counsel fails to timely file an amended complaint after a demurrer is sustained—the mandatory relief provision is inapplicable. (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at pp. 618-621.) Such a dismissal is not the procedural equivalent of a default. (Ibid.)
We turn to the question whether the present dismissal is the procedural equivalent of a default. We conclude that it is not. Here, the dismissal was the result of a litigated motion to dismiss based on the failure to file an amended complaint within the statutorily proscribed 30 days. (§ 472b.) Plaintiff filed an opposition to the motion arguing equitable principles and the discretionary provision of section 473, subdivision (b). Both sides appeared and argued the merits of the motion. The trial court evaluated the reasons for the failure to act in a timely manner. The dismissal was based on the litigated motion. It was not akin to a default. (See Leader v. Health Industries of America, Inc, supra, 89 Cal.App.4th at p. 621.) Accordingly, mandatory relief was not available to plaintiff.
At oral argument, plaintiff's counsel cited Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366 in support of his position. However, Dye does not address the applicability of section 473, subdivision (b) - the issue in this case. In addition, Dye is distinguishable in that it found the 30-day period set forth in section 472b was not applicable when an appellate court finds facts were adequately pled and, therefore, issues an outright reversal of an order sustaining a demurrer. Here, the initial reversal provided plaintiff with leave to amend the complaint.
IV. DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal from plaintiff.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J.
KRIEGLER, J.