Failure to Oppose Demurrer: Mandatory Relief from Dismissal Available

  The First Appellate District reverses the trial court and holds that the court was obligated to grant relief under the mandatory provision of Code of Civil Procedure section 473(b), where plaintiff presented a sworn declaration from his counsel attesting that counsel mistakenly failed to respond to the demurrer by timely filing an amended complaint. 

  In Pagnini v. Union Bank, plaintiff filed an action against defendants alleging wrongful foreclosure and related causes of action. Defendants’ demurred to all causes of action and plaintiff failed to file any opposition or appear at the hearing, despite defendants having filed and served a notice of non-receipt of opposition. At the hearing, the court sustained the demurrer without leave to amend and entered judgment in favor of defendants.

  Plaintiff’s counsel’s declaration averred he attempted to file an amended complaint prior to the hearing but the court clerk rejected it because the statute allowing the filing of an amended complaint pending a hearing on a demurrer had been amended to require that an amended complaint be filed within the time provided for filing opposition to the demurrer. Counsel further averred that he was not aware of the amendment to the statute, which previously permitted the filing of an amended complaint at any point before the hearing.

  The appellate court held defendants’ demurrer was effectively a “dismissal motion” and plaintiff’s counsel’s mistaken failure to respond to the motion obligated the trial court to relieve plaintiff from counsel’s error.

  Mr. Daymude consults with clients and accepts cases involving relief from default judgments and dismissal, including mandatory relief under Code of Civil Procedure section 473(b). For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

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