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December 4, 2001

Gotschall v. Daley (2002) 96 Cal.App.4th 479.

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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.

Michael Gotschall sued Peggy Daley for injuries sustained when he was attacked in her home.  His counsel disclosed one expert for trial, an economist to testify about loss of earnings.  The expert witness disclosure also indicated that plaintiff would call all of his treating physicians as non-retained experts, without specifically naming them.  During motions in limine the trial court precluded the treating physicians’ testimony because the disclosure of expert witnesses did not specifically identify them.  Daley’s motion for a dismissal because Gotschall could not establish the causation of his injuries was granted.

Gotschall moved to vacate the dismissal and augment his expert list under the mandatory provision of C.C.P.  § 473(b).  He argued that his counsel mistakenly believed that it was unnecessary to disclose treating physicians.  Gotschall argued his counsel made a mistake of law that cost him his day in court, making the mandatory provision of § 473(b) applicable.  The trial court granted the motion.   

The Court of Appeal reversed, holding that the mandatory provision of C.C.P. § 473(b) only applies to defaults and dismissals “akin” to defaults.   Because plaintiff had an opportunity to contest the dismissal, it was not “akin” to a default.  For this reason, the trial court had no power to grant relief under the mandatory provision of C.C.P. § 473(b).  Because Gotschall did not seek relief under the discretionary provision of C.C.P. § 473(b), the court did not consider the issue.

Comment:  C.C.P.  § 473(b) should not be considered a safe harbor when an attorney’s error results in dismissal.  When seeking relief for errors or omissions under this statute, counsel should always include a request for relief under the discretionary provision as well the mandatory provision.  Even if mandatory relief is not available, the court may exercise its discretion to grant relief and the trial court’s ruling will not be disturbed absent an abuse of discretion.

 

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