The Third District holds that mandatory relief under CCP § 473(b) based on an attorney’s mistake, inadvertence, surprise or neglect is not available to vacate an order granting summary judgment due to attorney error or a dismissal based on a failure to disclose a causation expert.
Evan English sued her employer IKON under the FEHA. English did not submit any evidence demonstrating a triable issue of fact in opposition to IKON’s motion for summary judgment. The opposition relied on CCP § 437c(h) and requested the opportunity to complete further discovery. English failed to explain what essential facts would be discovered, and failed to explain why the evidence could not have been presented in opposition to the motion. The court granted IKON’S motion.
English then filed a motion under the “mandatory” provision of CCP § 473(b) which requires the court set aside dismissals based on attorney mistake, inadvertence, surprise or neglect. English’s attorney filed a declaration claiming he had a mistaken belief that he only had to explain why he had not been dilatory in pursuing the case to obtain the requested continuance. The trial court denied the motion to vacate.
On appeal English argued that due to her attorney’s mistake, the summary judgment against her was equivalent to a default. The Court disagreed, holding that the mandatory provision of § 473(b) does not apply to a summary judgment. A summary judgment is neither a default, a default judgment, nor a dismissal within the meaning of the section. “Default” and “default judgment” under § 473(b) is limited to circumstances where a defendant fails to answer a complaint, and a judgment thereon.
The Court did not follow the holding of the Second Appellate District in Avila v. Chula, (1997) 57 Cal.App.4th 860. The Avila court held that the grant of summary judgment after failure to file timely oppositions “was directly analogous to a default judgment” and § 437(b) applied.
The Court noted that, under the appropriate circumstances, relief from a summary judgment ruling due to where relief is not limited to defaults, attorney error may be available under the default judgments, and dismissals.