In Jackson v. Kaiser Foundation Hospitals, Inc. (2/8/19 No. A150833), the First District Court of Appeal affirmed the trial court’s denial of a motion for relief from a voluntary dismissal, without prejudice, filed by the plaintiff based on the erroneous conclusion of an attorney who she had consulted (but who had not yet appeared as counsel in her case) that the applicable statute of limitations had not yet expired. In reality, the limitations period had expired on the same date plaintiff had filed her complaint in propria persona. The plaintiff later retained the attorney on a limited basis to present the motion for relief pursuant to Code of Civil Procedure § 473(b) based on the attorney’s affidavit of fault. Therein, the attorney testified that he had advised the plaintiff to dismiss her action voluntarily based on a misinterpretation of the applicable limitations period, which the attorney characterized as having been based on his “mistake, inadvertence, surprise, or neglect.”
Section 473 provides two distinct provisions for relief from default or dismissal – one is discretionary, while the other is mandatory. Discretionary relief is available in the case of an attorney’s mistake, inadvertence, surprise, or excusable neglect. In contrast, mandatory relief is available where the resulting dismissal was caused by an attorney’s mistake, whether or not excusable. In denying the plaintiff’s motion, the trial court reasoned that the plaintiff could not rely upon Section 473(b) because (1) the attorney did not represent the plaintiff at the time and (2) this provision did not apply to the voluntary dismissal of an action without prejudice.
The First Appellate District affirmed the trial court’s decision. It explained that the Legislature added dismissals to Section 473(b) in 1992 in order to put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion due to counsel’s mistake on equal footing with defendants who are defaulted for failing to respond to an action. The appellate court set forth three examples of dismissals outside the scope of the mandatory provision because they are distinct from a default: (1) a dismissal following the sustaining of a demurrer without leave to amend based on the statute of limitations; (2) a voluntary dismissal pursuant to a settlement agreement; and (3) a mandatory dismissal for failure to serve a complaint within three years. As a result, because the plaintiff’s voluntary dismissal of her case, even if based upon counsel’s erroneous advice, was not procedurally equivalent to a default, Section 473(b) was unavailable to reverse the dismissal. Because of this finding, the court declined to address the issue of the attorney’s non-representation at the time of the erroneous advice.
The court could have resolved the matter solely on the basis that the attorney was not counsel of record at the time of the erroneous advice; instead, it elected to address the issue as to whether Section 473(b) applied under the circumstances. Ordinarily, discretionary relief is available for a voluntary dismissal under a mistake of fact as occurred here. However, the attorney provided erroneous advice, which rendered this form of relief unavailable. As the court explained, “the law is clear that attorney conduct falling below the professional standard of care is not excusable.” It, therefore, follows that mandatory relief should not be available for a voluntary dismissal, even if based upon attorney mistake – whether excusable or not. As such, while attorneys tend to view Section 473(b) as a lifesaver, Jackson is a reminder of the limited circumstances under which the mandatory provision is available.
For further background on Section 473, see two prior Haight Alerts on this subject by the authors [click to read]: Attorney Submitting CCP 473(b) Declaration Not Obligated To State Reasons For “Mistake, Inadvertence, Surprise or Excusable Neglect” (February 4, 2016); and Relief From Dismissal Under Mandatory “Attorney-Fault” Provision of CCP 473(b) Granted Despite Absence of Evidence that Attorney’s Neglect Was Excusable (February 19, 2016).
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