C.C.P 473(b) Provides Relief From Terminating Sanction

  The Fifth Appellate District opines in Rodriguez v. Brill that relief from a judgment of dismissal under the mandatory provisions of Code of Civil Procedure section 473(b), for inexcusable failures of plaintiff’s attorney, is available following the granting of a terminating sanction.

  The specific holding:

  1) A judgment of dismissal that implements a terminating sanction for discovery abuse is a “dismissal entered” for purposes of section 473(b);

  2) The statutory phrase “unless the court finds” is ambiguous and interpreted to require an explicit finding by a court that denies mandatory relief;

  3) Mandatory relief under section 473(b) may not be available when a client’s negligence or willful misconduct is a contributory cause of the terminating sanction; and

  4) An application for relief from a terminating discovery sanction is “in proper form” if (1) verified discovery responses are delivered to opposing counsel before the hearing on the application for relief and (2) the content of those responses substantially complies with applicable requirements.

  The trial court did not make an explicit finding about the cause of the dismissal, the record did not disclose plaintiff’s conduct was a contributing factor in causing the terminating sanction, and plaintiff’s discovery responses substantially complied with statutory requirements. Accordingly, the judgment and underlying order denying relief were reversed.

  Mr. Daymude consults with clients and accepts cases involving relief from default, default judgment, dismissal, orders, or other proceeding taken against a party through mistake, inadvertence, surprise, or neglect pursuant to Code of Civil Procedure section 473, including those under the mandatory relief provisions of section 473(b) for inexcusable neglect of party’s attorney. 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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3 thoughts on “C.C.P 473(b) Provides Relief From Terminating Sanction

  1. THANK YOU So MUCH!!! for sharing your wisdom. It is such a relief to know NO JUDGMENT ON DEFAULT on quiet actions. After a wild deed was recorded on my property, the Judge would not discharge it unless I cross-complain. The fear of the long procedure with discovery that amounts to NOTHING. I decided not to continue with the game of litigating any longer – The judge admitted she made a mistake by granting attorney fees to the Plaintiff then after Exhibits submitted by me the Defendant by Judicial Notice she reversed the attorney fees, but only if I had paid the opposing attorney what she ordered, but not paying my attorney fees where he spent over 20 hours of work. Because of the judge’s mistake I spent over $30,000. in my defense and got nothing. I filed a 176 . Prejudist judge and it was untimely. How do I suppose to know the judge is prejudist at the begging of the case? Dahhhh Is not until you deal with a person (judge) to learn if she is prejudice or not.

    Anyway I am waiting for the Final Trial in which I do not plan to attend to have the judge default on me. I know what to do next based on the wild deed recorded on my property. Monkey see monkey do. I believe this is a totally corrupted judicial practices. motivated by judges.

    • I believe you misunderstand the term default judgment in the context of a quiet title action. All it means is that you can appear and defend at trial.

      If you fail to appear and defend at trial, plaintiff will attempt to prove its case and you are likely to lose and have judgment entered against you. That judgment will be binding and conclusive on all persons, known and unknown, who were parties to the action and all persons who were not parties to the action. That would include you.

      While you may be reluctant to incur further legal fees, I urge you to consult and retain qualified real estate counsel immediately. Otherwise, I fear you may lose your property.

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