into in 2003. While the property sale was in escrow, Wilkie‟s counsel sent a letter to
Las Vegas Land stating that, based on unjustified delays in closing escrow, Wilkie
intended to cancel the Agreement and retain Las Vegas Land‟s deposit as liquidated
damages unless Las Vegas Land executed the sale documents by October 25, 2007. It
did so and the sale closed on October 26, 2007.
On November 8, 2007, Levitz Furniture filed for bankruptcy. On August 29,
2008, Las Vegas Land filed a complaint for breach of contract and fraud based on
Wilkie‟s failure to disclose that Levitz Furniture was going to file for bankruptcy.
Wilkie demurred on the grounds that the Agreement contained an express waiver of all
1 Unless otherwise stated, all statutory references are to the Code of Civil Procedure. 2 Although appellant characterizes its appeal as a challenge to the court‟s decision to deny its request to file an opposition to the motion for summary judgment, appellant is, in essence, challenging the court‟s refusal to set aside the summary judgment under section 473, subdivision (b).
2
claims concerning future income from the property, and it was Las Vegas Land‟s
responsibility to investigate the property. Las Vegas Land amended its complaint twice,
and Wilkie filed an answer. In December 2010, Wilkie moved for summary judgment.
On February 18, 2011, Las Vegas Land moved ex parte for a continuance of the
hearing on the summary judgment motion set for March 9, 2011. The court denied the
application. Las Vegas Land did not file an opposition to the summary judgment
motion, but its counsel appeared at the hearing.3 The court granted summary judgment
based on Wilkie‟s evidence. Judgment was therefore entered against Las Vegas Land
on March 18, 2011.
Approximately six months later, on September 12, 2011, Las Vegas Land filed
a “motion for relief from motion for summary judgment ruling” under section 473,
subdivision (b). Las Vegas Land argued that it had not filed an opposition to the
summary judgment motion due to “bad lawyering,” and that it could not obtain an
affidavit of fault from its prior attorneys because one was being prosecuted for stealing
money from plaintiff and the other had cut off contact with plaintiff. In the motion,
Las Vegas Land requested permission to file an opposition to the motion for summary
judgment and argued that the court was required to grant this relief pursuant to the
mandatory provision of section 473, subdivision (b). Approximately a month later,
Las Vegas Land filed a proposed opposition to Wilkie‟s motion for summary judgment.
3 In fact, two attorneys attended the hearing for Las Vegas Land: Jamaul Cannon, whose motion to be relieved as counsel was pending, and James Autrey, who had not yet substituted in as counsel for Las Vegas Land.
3
This “motion for relief” was heard on December 16, 2011 and denied on the
following grounds: (1) Las Vegas Land did not file a copy of the proposed opposition
with the motion for relief; (2) no affidavit of fault was submitted; and (3) the failure of
Las Vegas Land‟s counsel to “perform effectively” did not “constitute a sufficient
ground for setting aside a motion for summary judgment ruling.” Las Vegas Land
timely appealed.
CONTENTIONS
Las Vegas Land contends that the trial court erred in denying its request to vacate
the summary judgment under the mandatory provision of section 473, subdivision (b)
because (1) the provision applies to summary judgments, and (2) allows an exception to
the requirement that the moving party submit an attorney affidavit of fault when a client
has been abandoned by its counsel.
DISCUSSION
1. The Mandatory Provision of Section 473, Subdivision (b) Does Not Apply to Summary Judgments
“The issue of whether the mandatory provision of section 473(b) applies to
summary judgments is a task of statutory construction, subject to de novo review.
[Citation.]” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215,
226.) Section 473, subdivision (b) provides that “[t]he 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
4
accompanied by a copy of the answer or other pleading proposed to be filed
therein . . . . 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.”
In challenging the trial court‟s denial of its “motion for relief” under section 473,
subdivision (b), Las Vegas Land relies exclusively on the mandatory provision of the
statute which requires the court to vacate a “default” or “default judgment or dismissal”
entered against a party when that party‟s counsel swears in an affidavit that the default
or dismissal was “caused by the attorney‟s mistake, inadvertence, surprise, or neglect.”
There is a split of authority as to whether the mandatory provision of section 473,
subdivision (b) applies to the entry of summary judgment. Las Vegas Land relies on
Avila v. Chua (1997) 57 Cal.App.4th 860 for the proposition that the mandatory
provision applies where a dismissal was entered after the court struck the plaintiff‟s
tardy opposition to the defendant‟s motion for summary judgment and entered judgment
for defendant. The Avila court reasoned that relief was proper because the case was
“directly analogous to a default judgment” and the plaintiff had “lost his day in court
due solely to his lawyer‟s failure to timely act.” (Id. at p. 868.)
5
More recent cases, however, hold that the provision for mandatory relief does not
apply to summary judgments. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 [“As
English [v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130] and its progeny
recognize, the mandatory provision „applies only to relief sought in response to defaults,
default judgments or dismissals.‟ [Citation.]”]; Prieto v. Loyola Marymount University
(2005) 132 Cal.App.4th 290, 295 [“The mandatory provision is expressly predicated on
the entry of a default by the clerk. If an opposition to a motion for summary judgment
is filed late, as in Avila, or not at all, as in this case, the clerk does not enter a default.”];
English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th at p. 143 [“[W]e find
nothing in the statute to suggest the Legislature intended the mandatory provision of the
statute to apply to summary judgments.”].)
We agree with the more recent line of case authority. The mandatory provision
of section 473, subdivision (b), empowers the court to 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 . . . . ” (Italics added.) It does not authorize a court to set aside a summary
judgment, and, as explained by the court in English v. IKON Business Solutions,
a summary judgment is neither a “default judgment” nor a “dismissal.”
“The word „default‟ has both a broad meaning and a narrow meaning. Broadly,
a „default‟ is „[t]he omission or failure to perform a legal or contractual duty . . . . ‟
(Black‟s Law Dict. (7th ed. 1999) p. 428.) Narrowly, the word „default‟ refers to
a defendant‟s failure to answer a complaint. [Citations.] As used in the mandatory
6
provision of section 473(b), „default‟ carries its narrower meaning . . . [because] [t]he
mandatory provision of the statute requires the court to vacate not any „default,‟ but
only a „default entered by the clerk . . . which will result in entry of a default
judgment . . . . ‟ [¶] With the word „default‟ thus properly understood, the meaning of
the term „default judgment‟ follows inexorably. A „default judgment‟ within the
meaning of section 473(b) is a judgment entered after the defendant has failed to answer
the complaint and the defendant‟s default has been entered. [Citations.] . . . [¶]
A summary judgment does not result from a defendant‟s failure to answer the
complaint.” (English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th at
pp. 143-144.)
“A similar conclusion follows with regard to the word „dismissal.‟ . . . [¶] „[I]n
the context of pleadings and motions, a dismissal is the withdrawal of an application for
judicial relief by the party seeking such relief, or the removal of the application by
a court.‟ [Citing Epstein, J. dissent in Yeap v. Leake (1997) 60 Cal.App.4th 591,
603.] . . . [¶] A summary judgment is not „the removal . . . by a court‟ „of an
application for judicial relief.‟ [Citation.]” (English v. IKON Business Solutions, Inc.,
supra, 94 Cal.App.4th at pp. 144-149.) Accordingly, the mandatory provision does not
encompass summary judgments.
Although the Avila court held that the mandatory provision should be extended to
apply to cases that are “directly analogous to a default judgment,” we conclude that
section 473, subdivision (b) should be limited to the narrow class of cases in which
a default judgment or a dismissal has been entered. We agree with the comments of
7
Justice Epstein in his dissent in Yeap and believe that they have full application here.
“[T]o read the mandatory provision of Code of Civil Procedure section 473 to apply
whenever a party loses his or her day in court due to attorney error goes far beyond
anything the Legislature has done.” (Yeap v. Leake, supra, 60 Cal.App.4th at p. 605
[dis. opn. of Epstein, J.].)
2. There Is No Exception to the Requirement That a Moving Party Submit an Attorney Affidavit of Fault Under the Mandatory Provision of Section 473, Subdivision (b)
Las Vegas Land argues that a client who has been abandoned by its attorney
should not be required to submit an attorney affidavit of fault under the mandatory
provision of section 473, subdivision (b). However, the plain language of the statute
does not provide for any exception to this requirement: the provision requires the court
to vacate any resulting default, default judgment or dismissal “whenever an application
for relief . . . is accompanied by an attorney‟s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect.”
In addition, the record here does not establish that Las Vegas Land was
abandoned by its attorneys, Jamaul Cannon and James Autrey. Cannon submitted
a declaration in support of the opposition to the “motion for relief” stating that he
advised Las Vegas Land‟s officer, Amir Shokrian, that an opposition to the motion for
summary judgment was due, and Shokrian told him that Las Vegas Land had hired two
other attorneys, including Autrey, to prepare the opposition. In Las Vegas Land‟s reply,
it did not dispute this. Las Vegas Land also did not provide any admissible evidence
showing that it ever tried to obtain an affidavit of fault from Autrey. This record does
8
not support Las Vegas Land‟s allegation on appeal that it was abandoned by its
attorneys.
Furthermore, in the case of an attorney‟s abandonment of a client, the injured
client‟s remedy is to bring a motion for discretionary relief under section 473. As set
forth in English v. IKON Business Solutions: “In the appropriate circumstances, of
course, relief from a summary judgment may be available to either a plaintiff or
a defendant under the discretionary provision of section 473(b). [Citation.] This is so
because discretionary relief under the statute is not limited to defaults, default
judgments, and dismissals, but is available from any judgment.” (English v. IKON
Business Solutions, Inc., supra, 94 Cal.App.4th at p. 149; italics added.) The client also
has the right to bring an action against its attorney. Accordingly, a client abandoned by
its attorney at the summary judgment stage is not without remedies even though it
cannot rely upon the mandatory provision of section 473, subdivision (b).4
4 In light of our conclusions here, we have no need to address the additional reason that supports the trial court‟s ruling: Las Vegas Land‟s failure to timely file “a copy of the answer or other pleading proposed to be filed” with the motion as required. (Section 473, subdivision (b).) Nonetheless, we have also examined Las Vegas Land‟s proposed opposition to the motion for summary judgment and, in our view, the motion would still have been granted on the merits had the opposition been considered by the court. There was no admissible evidence provided that raised any triable issues of fact.
9
DISPOSITION
The judgment is affirmed. The defendant shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
10
AI Brief
AI-generated · verify before citing
Holding. The mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) does not apply to summary judgments, as they are neither defaults, default judgments, nor dismissals.
Issues
Does the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) apply to summary judgments?
Does the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) allow an exception to the requirement of an attorney affidavit of fault when a client is abandoned by counsel?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude that this provision does not apply to summary judgments, and affirm.”
“It does not authorize a court to set aside a summary judgment, and, as explained by the court in English v. IKON Business Solutions, a summary judgment is neither a “default judgment” nor a “dismissal.””