SUPERIOR COATINGS, INC. v. LOS ANGELES UNIFIED SCHOOL DISTRICT
Court of Appeals of California, Second District, Division Three.
Filed August 23, 2012.
Superior contends it was entitled to mandatory relief, based on counsel's affidavit of fault, and therefore the trial court erred in denying Superior's motion under section 473(b), to allow the filing of its first amended complaint. The argument fails.
The mandatory relief provision of section 473(b), based on an attorney's affidavit of fault, require the court, if certain prerequisites are met, to vacate a "default," a "default judgment," or a "dismissal." (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143 (English).) In this context, the word "dismissal" is construed as having a limited meaning similar to the term "default judgment." (Id. at p. 145.) In adding the word "dismissal" to the mandatory provision of section 473(b), "the Legislature `intended to reach only those dismissals which occur through failure to oppose a dismissal motion—the only dismissals which are procedurally equivalent to a default. [Citation.]" (English, supra, at p. 145, italics added.)
Thus, various decisions have "construed the word `dismissal' in the mandatory provision of section 473(b) as having a limited meaning, to prevent that provision `from being used indiscriminately by plaintiffs' attorneys as a "perfect escape hatch" [citation] to undo dismissals of civil cases.' [Citation.] Thus, we have held that the mandatory provision does not apply to: (1) a dismissal following the sustaining of a demurrer without leave to amend on the ground the statute of limitations had run [citation]; (2) a voluntary dismissal pursuant to a settlement agreement [citation]; and (3) a mandatory dismissal for failure to serve a complaint within three years [citation]." (English, supra, 94 Cal.App.4th at pp. 145-146.)
In the instant case, Superior relied on counsel's affidavit of fault to excuse its failure to file a timely first amended complaint, prior to the hearing on the demurrer to the original complaint. Because the nature of said proceeding was a demurrer, not a motion for involuntary dismissal, the mandatory relief provision of section 473(b) has no application here.
Therefore, the trial court properly refused to entertain the proposed first amended complaint, belatedly proffered by Superior after the trial court sustained the District's demurrer to the original complaint without leave to amend.
3. Review of the original complaint, which is the operative complaint, indicates it was incapable of being amended to state a cause of action.
a. Superior's noncompliance with Tort Claims Act is fatal to its first cause of action for "nuisance/trespass"; Superior is incapable of amending its complaint to state a cause of action in tort.5