The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder.
But I never read about that actually happening until the decision in Hossain v. Hossain, case no. 196198 (2d Dist. Nov. 30, 2007). Plaintiff’s opposition to a motion to enforce a settlement agreement and his cross-motion to enforce it on different terms were both untimely, and the trial court refused to consider them because of their untimeliness. Plaintiff filed a section 473(b) motion for relief from the order enforcing settlement and appealed from the order denying relief.
The court notes a split of authority regarding the orders to which the mandatory relief provision of section 473(b) applies. Section 473(b) provides for mandatory relief from a “default entered by the clerk against his or her client, and which will result in entry of a default judgment,” or “default judgment or dismissal” provided that the default or default judgment or dismissal results from the attorney’s “mistake, inadvertence, surprise, or neglect,” the attorney so admits in an affidavit, and application is made within six months. The split concerns interpretation of “default.”
Plaintiff cited several cases holding that mandatory relief applies to situations that are the “procedural equivalent of a default.” Those cases found mandatory relief from failure to appear for trial, failure to appear for arbitration, and failure to oppose a summary judgment motion.
But the Second District Court of Appeal adopts the position of English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, which, after examining the legislative history of the provision, held that mandatory relief applied only to defaults explicitly described in the statute, i.e., a default “entered by the clerk against his or her client, and which will result in entry of a default judgment.” Thus, it affirms the order denying relief.
I don’t know if this issue arises often enough to make this split of authority important enough for the Supreme Court to grant review. But it is certainly a significant split, not just for parties, but also for attorneys, who admit fault in the course of seeking relief. A scary proposition for those attorneys who are unsure of whether mandatory relief applies, even if the mistake, inadvertence, surprise or neglect was arguably excusable.
As a side note, the court only certified for publication the introductory paragraph, a section of its discussion, and the disposition. It did not certify the “Factual and Procedural Summary.” Oversight?