Appellate Law

Affirming on appeal on an alternate ground ? the rule as applied to section 473(b) motions for relief

By Greg May

Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss.

The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way.  The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the dismissal, on grounds of excusable neglect and attorney fault. In granting the set-aside motion, the trial judge stated that she relied on section 473, subdivision (b)’s “discretionary” provision.

The appellants succeeded in convincing the court of appeal that the trial judge had abused her discretion in granting discretionary relief. The plaintiff offered no explanation for not seeking relief promptly and the attorney’s affidavit offered only “cryptic explanations” for his conduct, thus failing to establish that his neglect was excusable.

Appellants still lost, however, because the court affirmed on an alternate ground, which the trial court apparently never considered: the “attorney-fault provision” of section 473, subdivision (b), mandated setting aside the dismissal. The statutory mandate in section 473, subdivision (b) to set aside a default or dismissal upon a suitable affidavit from counsel reads as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney?s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney?s mistake, inadvertence, surprise, or neglect.

Long-time readers may recall I have warned against some pitfalls in this type of motion, and noted a significant split of authority regarding the applicability of this provision. But in this case, the plaintiff got it right. The motion was timely, the affidavit of fault was sufficient, and the trial court disposition was “the procedural equivalent of a default judgment” (though this was not obvious).

Appeals from orders granting section 473, subdivision (b) motions, in the abstract, will frequently present an opportunity for the appellate court to affirm on alternate grounds, since the statute itself provides for alternate grounds for relief from certain defaults and judgments. Be on the lookout for this whenever you are the respondent in such an appeal.

And never go into an appeal thinking you have a “slam dunk.”

Full post as published by The California Blog of Appeal on February 17, 2016 (boomark / email).