Lost Opportunity to Participate In Arbitration Due to Counsel Negligence
In Yeap v. Leake (1997) 60 Cal. App. 4th 591, 600-601 70 Cal. Rptr. 2d 680, decided under the 1992 amendment to section 473 which added the term "or dismissal," the Court of Appeal concluded the provision should be applied where the default or dismissal occurs under circumstances similar or comparable to a default.
It was then applied to grant relief to a plaintiff's whose opportunity to participate in the arbitration was lost due to negligence of counsel and the award became final also due to attorney misfeasance. (Yeap v. Leake, supra, 60 Cal. App. 4th at pp. 594, 600-601.)
A number of recent cases have considered the issue of what constitutes a default for purposes of section 473.
Under this standard, section 473 may be used for relief under circumstances, which have been determined to be the procedural equivalent of a default.
Vaccaro v. Kaiman (1998) 63 Cal. App. 4th 761, 771 73 Cal. Rptr. 2d 829 uncontradicted affidavit of counsel and plaintiff that pleading was not signed solely because of attorney's delay;
J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal. App. 4th 1485, 1492-1494 73 Cal. Rptr. 2d 365 defendant's attorney's failure to object to plaintiff's motion to dismiss a claim "without prejudice" when dismissal should have been "with prejudice";
Yeap v. Leake, supra, 60 Cal. App. 4th at pp. 601-602 plaintiff did not have opportunity to participate in judicial arbitration and award was made final, all as a result of counsel's negligence;
Bernasconi Commercial Real Estate v. St Joseph's Regional Healthcare System (1997) 57 Cal. App. 4th 1078, 1082 67 Cal. Rptr. 2d 475 a failure to oppose a dismissal motion;
Avila v. Chua, supra, 57 Cal. App. 4th at p. 868 summary judgment granted without consideration of opposition filed late due to attorney's error;
Peltier v. McCloud River R.R. Co. (1995) 34 Cal. App. 4th 1809, 1824 41 Cal. Rptr. 2d 182 a failure to oppose motion for dismissal for failure to prosecute;
Graham v. Beers (1994) 30 Cal. App. 4th 1656, 1661 36 Cal. Rptr. 2d 765 a failure to oppose dismissal motion is procedural equivalent of default.) the rationale of these cases is that, where there is no hearing on the merits, an attorney's neglect should not prevent the party from having his or her day in court. ( Brown v. Williams (2000) 78 Cal. App. 4th 182, 189 92 Cal. Rptr. 2d 634;
Yeap v. Leake, supra, 60 Cal. App. 4th at pp. 601-602; Avila v. Chua, supra, 57 Cal. App. 4th at p. 868.)
In a different context, the Supreme Court has explained: " 'A proceeding taken against a party in his absence is in the nature of a default.
The purpose of section 594(a) is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear.' (Sheldon v. Landwehr (1911) 159 Cal. 778, 782 116 P. 44; see also Estate of Dean (1906) 149 Cal. 487, 492 87 P. 13.)" (Au-Yang v. Barton (1999) 21 Cal. 4th 958, 963 90 Cal. Rptr. 2d 227, 987 P.2d 697.)
This dictum, coming as it does from the California Supreme Court, is highly persuasive.
However, section 473 does not apply where the party has had an opportunity to have her or his day in court and has contested the judgment or order. (Brown v. Williams, supra, 78 Cal. App. 4th at p. 189, plaintiff's counsel failed to timely request trial de novo after plaintiff appeared and participated in arbitration hearing; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 679-681 68 Cal. Rptr. 2d 228 the failure to assert facts in opposition to summary judgment.)
Thus, it does not apply to circumstances which are not the procedural equivalent of a default.
Bernasconi Commercial Real Estate v. St Joseph's Regional Healthcare System, supra, 57 Cal. App. 4th at p. 1080 a dismissal for delay in service of summons;
Huens v. Tatum (1997) 52 Cal. App. 4th 259, 264-265 60 Cal. Rptr. 2d 438 a voluntary dismissal;
Castro v. Sacramento County Fire Protection Dist. (1996) 47 Cal. App. 4th 927, 933 55 Cal. Rptr. 2d 193 a dismissal based on running of the statute of limitations;
Peltier v. McCloud River R.R. Co., supra, 34 Cal. App. 4th at p. 1824 judgment resulting from failure to prosecute;
Graham v. Beers, supra, 30 Cal. App. 4th at p. 1661 judgment resulting from failure to prosecute.) Moreover, the provision does not apply to every situation where a dismissal occurs due to attorney misfeasance and section 473 relief is sought. ( Yeap v. Leake, supra, 60 Cal. App. 4th at p. 600.)
The rationale for refusing to apply section 473 under such circumstances is, "The Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissal statutes." (Graham v. Beers, supra, 30 Cal. App. 4th at p. 1661.)