Mandatory Relief Because of Attorneys ''Fault''
The courts have granted mandatory section 473 relief when the facts show that the parties did not contribute to the conduct which caused the default or dismissal.
For example, Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861 [62 Cal. Rptr. 2d 98], affirmed the grant of a motion to vacate a default and default judgment based upon attorney misconduct regarding discovery requests and motions to compel. Milton found there was substantial evidence that the parties "were not responsible in whole or in part" for the defaults and default judgments. (Id. at p. 868.)
Vaccaro v. Kaiman (1998) 63 Cal. App. 4th 761 [73 Cal. Rptr. 2d 829], reversed the trial court and found that the "mandatory provision of section 473 required the court to set aside the order of dismissal when plaintiff's counsel admitted his neglect." ( Id. at p. 763).
In that case, the trial court struck the first amended complaint because counsel failed to sign it. (Ibid.) In the motion for relief from default, the attorney filed a declaration taking sole responsibility for failing to sign the pleading more promptly.
The plaintiff also declared that " 'if there was any delay in the filing and serving of a signed version of the Amended Complaint, it was solely the result of the acts of my counsel.' " (Id. at p. 770, italics added).
The Court of Appeal found that the "uncontradicted affidavits show[ed] that the pleading was not promptly signed solely because [the attorney] . . . delay[ed] signing, contrary to plaintiff's instructions. There [was] no evidence that plaintiff herself caused [the attorney] not to sign the pleading." ( Id. at p. 771).
By contrast, Todd v. Thrifty Corp. (1995) 34 Cal. App. 4th 986 [40 Cal. Rptr. 2d 727], held that counsel covered up for his client's actions and thus the client was not entitled to the mandatory relief provision of section 473. (34 Cal. App. 4th at p. 992.)
In Todd, the plaintiff's lawsuit was dismissed for failure to comply with discovery. the plaintiff's attorney tried to set aside the dismissal under the discretionary section 473 relief.
He filed a declaration explaining that the plaintiff failed to comply with the discovery orders because of ill health and other family and business emergencies.
When the court denied that motion to set aside, the attorney filed a new motion under the mandatory section 473 relief. He then filed a subsequent declaration in which he blamed himself for the plaintiff's failure to comply with discovery requests and orders.
The Todd court held that the attorney could not change his story; "[h]aving attributed the dismissal to plaintiff's personal problems at the first hearing, counsel could not thereafter attempt to change the facts and blame himself. " (34 Cal. App. 4th at p. 992.)
Mandatory section 473 relief shall not be granted when the attorney is "simply covering up for the client." (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821 [14 Cal. Rptr. 2d 286].)
Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal. App. 4th 613 [34 Cal. Rptr. 2d 26], is analogous to the matter before us.
In Johnson, defendant Pratt failed to respond to the plaintiffs' numerous document requests and failed to comply with various court orders. ( Id. at pp. 617-620.)
The plaintiffs moved for terminating sanctions, or in the alternative, issue and evidence preclusion sanctions. ( Id. at p. 620.)
At the hearing, the trial court asked Pratt's counsel to explain the apparent stonewalling. (Ibid.)
The Court of Appeal stated: "Numerous instances of such conduct were noted by the [trial] court, one of which involved Pratt's counsel having told the court his client did not have documents which, it turned out, the client did have.
Counsel responded that he had given the court the information provided to him by his client:
'If [the Pratt manager responsible for the documents] tells me we don't have them, I have to believe him.' Finding lack of credibility an 'ever continuing flavor' in the proceedings, [the trial court] granted plaintiffs' motion 'for the issue  sanctions and evidentiary sanctions as requested.'
Further, on its own motion, it struck Pratt's answer 'in light of all the concerted activities to deter discovery.' " (Id. at pp. 620-621).