Falling on your 473(b) sword only gets you so far

OK, it's not actually FALLING, but you get the picture

Oddly enough, this point is made in a case where no one actually fell on their sword.

The title of this post comes from my nickname for the mandatory relief provision in  Code of Civil Procedure section 473, subdivision (b) (my emphasis):

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.

I’ve always considered this a very scary provision, since it invites an attorney to admit he screwed up, and maybe even committed malpractice (hence my reference to this as the “fall on your sword provision”), in order get his client (and himself) out of a jam. The scary part is . . . what about those situations where an attorney admits fault, but does not get the “mandatory” relief?

The limitations of this provision are explored in yesterday’s decision in Las Vegas Land and Development Co., LLC v. Wilkie Way. LLC, case no. B238921 (2d Dist. Sept. 20, 2013). In that case, a plaintiff failed to file any opposition to a summary judgment motion and had summary judgment entered against it. The plaintiff moved under this mandatory relief provision to set aside the summary judgment, then appealed from the order denying relief.

The limits of falling on your sword – forget about relief from summary judgment

The court holds, consistent with other decisions and contrary to an outlier holding the other way, that the mandatory relief provision does not apply to summary judgments. This holding results from a pretty straightforward analysis of the statutory language limiting application of the provision to defaults and default judgments.

What happens when no one actually falls on their sword?

I’ve seen applications for mandatory relief denied when the court deemed the attorney’s affidavit of fault too unspecific to constitute the required admission. In this case, the plaintiff applicant took it one step farther, and sought relief without any affidavit of fault from an attorney, claiming that its counsel had abandoned it.

In light of the court’s holding that the mandatory relief provision does not apply, the resolution of this request makes no difference, but the court addressed it anyway. Again, it reached a conclusion on a very straightforward analysis. The statute has no exceptions to the affidavit requirement, so the party seeking relief was not excused from providing an affidavit of fault, notwithstanding its contention that it had been abandoned by its counsel.

In fact, plaintiff’s former counsel — the one representing plaintiff at the time plaintiff failed to respond to the summary judgment motion, and who had supposedly abandoned plaintiff — filed an affidavit opposing plaintiff’s request for relief from the judgment, saying that he had advised his client of the need to oppose the summary judgment and was told by the client that it had already engaged new counsel to do so. Not exactly the kind of affidavit plaintiff could have used from the guy, since it not only disavowed any fault but also established that the client had not been abandoned, undermining the factual basis for the claimed exception to the rule.

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