![]() First, “he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Such an application must be made within a “reasonable time,” but in no event more than six months after the dismissal or other action. Section 473(b) allows a court to vacate a judgment dismissing an action on two separate grounds. Despite defendants’ opposition, the motion was granted based on Section 473(b)’s “discretionary” provision. The replacement counsel, who had finally substituted into the action for plaintiffs, thereafter moved to set aside the dismissal under Section 473(b) on grounds of excusable neglect and attorney fault, supported by his declaration. Defendants then applied ex parte for an order of dismissal based on plaintiffs’ failure to file an amended complaint, which was unopposed and granted by the trial court. ![]() Meanwhile, plaintiffs failed to oppose defendants’ demurrers and failed to file an amended complaint within the time allotted by the trial court’s order sustaining the demurrers. Yet, the replacement counsel failed to file the substitution of attorney. Although the trial court’s stated reason for vacating the dismissal – its discretion to grant relief based upon mistake, inadvertence, surprise, or excusable neglect – was not sufficiently supported, because the dismissal resulted from plaintiffs’ counsel’s inexcusable conduct, plaintiffs were entitled to relief under the “attorney-fault” provision of Code of Civil Procedure section 473(b).Īfter filing a complaint for legal malpractice based upon the alleged mishandling of an earlier civil action, plaintiffs’ initial counsel was seemingly replaced. ![]() ![]() G051034 – filed February 16, 2016), Division Three of the Fourth Appellate District reluctantly affirmed the trial court’s order vacating dismissal of a legal malpractice case. ![]()
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