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.