Lawyer's Failure to File Opposition to a Motion on Time
In Avila v. Chua (1997) 57 Cal. App. 4th 860 [67 Cal. Rptr. 2d 373], the plaintiff's attorney failed to timely file oppositions to two motions for summary judgment.
The trial court struck the late-filed oppositions and granted summary judgment in favor of the defendants. the trial court later denied a motion to vacate the summary judgment under section 473(b).
On appeal, Division Five of the Second Appellate District held the trial court erred in denying the motion to vacate because the mandatory provision of section 473(b) applied.
Relying in part on this court's decision in Huens v. Tatum (1997) 52 Cal. App. 4th 259 [60 Cal. Rptr. 2d 438], the court in Avila concluded the plaintiff was entitled to relief under the mandatory provision of section 473(b) because the case was "directly analogous to a default judgment." ( Avila v. Chua, supra, 57 Cal. App. 4th at p. 868.)
According to the Avila court, the case was "of the kind which Huens found that the mandatory provisions were designed for: Appellant lost his day in court due solely to his lawyer's failure to timely act." (Ibid.)