Code of Civil Procedure section 473, subdivision (b) requires a court, under certain circumstances, to grant relief from default or dismissal that results from counsel’s mistake, inadvertence, surprise, or neglect.  In a recently-published opinion, Las Vegas Land & Development Co. v. Wilkie Way (2013) 219 Cal.App.4th 1086, 1090, Division Three of the Second Appellate District reminded us that California appellate courts are currently split on whether this mandatory provision applies to summary judgment.  There, the court joined the majority and held that it does not.  (Id. at p. 1091.)

The two cases that best illustrate the split of authority are Avila v. Chua (1997) 57 Cal.App.4th 860, decided by Division Five of the Second Appellate District, and English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, decided by the Third Appellate District. 

In Avila, the trial court granted the defendants’ motions for summary judgment after striking Avila’s late-filed oppositions.  (57 Cal.App.4th at pp. 863-864.)  Avila moved under section 473(b) to set aside the dismissal that followed and attached a declaration from his attorney explaining that she had erred in calendaring the due date for the oppositions.  (Id. at p. 865.)  The trial court denied Avila’s motion. (Ibid.

The Court of Appeal reversed.  (Avila, supra, 57 Cal.App.4th at pp. 869-870.)  The court explained that because there had been no litigation and adjudication on the merits, the dismissal of Avila’s case was not the kind of "dismissal" that should be excluded from the mandatory provision.  (Id. at p. 868.)  To the contrary, Avila’s case was the kind that the mandatory provision was designed for: Avila had lost his day in court due solely to his lawyer’s failure to timely act.  (Ibid.)  The court explained that Avila’s case was "directly analogous" to a default judgment because, due to counsel’s late filing of crucial documents, the trial court had decided the matter on the other parties’ pleadings.  (Ibid.)  Thus, the Avila court concluded that, in some circumstances, the mandatory provision of section 473(b) may require a court to vacate a summary judgment entered as a result of an attorney’s mistake, inadvertence, surprise or neglect.  

The court in English disagreed.  There, the plaintiff opposed the defendant’s motion for summary judgment based entirely on Code of Civil Procedure section 437c(h), which requires the court to deny a motion for summary judgment or grant a continuance if it appears that facts essential to justify opposition may exist but cannot then be presented.  (94 Cal.App.4th at pp. 133-134.)  The trial court refused to grant a continuance and instead granted the summary judgment motion.  (Id. at p. 134.)  The plaintiff subsequently moved under section 473(b) to vacate the summary judgment against her, attaching a declaration from her attorney in which he claimed he had neglected to submit a substantive opposition to the motion for summary judgment based on his mistaken belief that he only had to explain why his firm had not been dilatory in pursuing the case.  (Ibid.)  The trial court denied English’s motion.  (Ibid.

The Court of Appeal affirmed.  (94 Cal.App.4th at p. 150.)  The court approached the determination of whether the mandatory provision of section 473(b) applies to summary judgments as a task of pure statutory construction.  (Id. at p. 142.)  Turning to the language of section 473(b), the court found nothing in the statute to suggest the Legislature intended the mandatory provision of the statute to apply to summary judgments.  (Id. at p. 143.)  On its face, the mandatory provision requires the court, if certain prerequisites are met, to vacate a "default," a "default judgment," or a "dismissal."  (Ibid.)  The court then defined each term, and concluded that a summary judgment is neither a "default," nor a "default judgment," nor a "dismissal."  (Id. at pp. 143-149.)  Thus, the court held that the mandatory provision of section 473(b) does not apply to summary judgments.  (Id. at p. 138.)  In so holding, the English court specifically criticized Avila‘s conclusion that a summary judgment is "directly analogous to a default judgment," stating, "It is not an appellate court’s task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations ‘analogous’ to those the statute explicitly addresses.  Rather, an appellate court’s task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves."  (Id. at p. 144.) 

Some courts have followed Avila‘s expansive approach to the mandatory provision of section 473(b) and applied it in situations that are "analogous" to a default judgment.  (See, e.g., Yeap v. Leake (1997) 60 Cal.App.4th 591, 601 [granting relief from a judgment of "$0" entered after the plaintiff's attorney failed to attend judicial arbitration and then failed to timely request a trial de novo because that judgment was "analogous to a default"]; see also In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1443 [vacating judgment on reserved issues where the attorney failed to appear on the date set for the trial because it was the "procedural equivalent of a default"]).  But a growing number—indeed a majority—of decisions, including the recently-decided Las Vegas Land & Development Co. v. Wilkie Way, supra, 219 Cal.App.4th at pages 1091-1092, have taken the more limited approach from English

None of this is to say that a client who has been injured by an attorney’s mistake, inadvertence, surprise, or neglect is without a remedy.  Even if relief from summary judgment may not be available under the mandatory provision of section 473(b), discretionary relief can—and should—always be sought.  (See English, supra, 94 Cal.App.4th at p. 149 [explaining that, under section 473(b), discretionary relief is available from any judgment].)  Although this avenue does not guarantee relief, it may be preferable in some situations—for example, where the client cannot obtain an affidavit of fault from its attorney, which is a requirement for mandatory relief under section 473(b), but not for discretionary relief.