After the trial court granted summary judgment for the City of Petaluma (the City) in this personal injury case, plaintiff Christopher Minick (Minick) moved for discretionary relief from the judgment under Code of Civil Procedure section 473, subdivision (b),
A. Minick's Lawsuit and the Grant of Summary Judgment Against Him
While riding in the "Holstein 100," a noncompetitive charity bicycling event held as a fundraiser for West Marin Senior Services, Minick fell from
In August of 2013, the City filed a summary judgment motion arguing that Minick — who testified in deposition that he has no recollection of the accident, and only remembers waking up in the hospital afterward — had no proof of any dangerous condition on public property. Watson prepared and filed papers opposing the motion, attaching some grainy, low-resolution black-and-white photographs of the site where the accident was alleged to have taken place, including a photo showing Erwin standing in an unidentified street pointing to somewhere on the pavement; a copy of a police collision report containing a statement from Erwin that he had seen a pothole in the street where Minick fell; and an expert declaration from an engineer, Dale Dunlap, who offered the opinion that a defect in the street at the scene of the crash caused him to fall.
The City's motion was set for hearing on January 10, 2014. The day before the hearing the court issued a tentative ruling denying the motion. When the parties appeared for argument the next day, Watson appeared, but showed signs of physical distress during argument and was taken to a hospital by ambulance. The court continued the hearing to March 12, 2014. The day before the continued hearing, the court issued another tentative ruling, again denying the City's summary judgment motion, but after hearing argument and taking the matter under submission for several weeks, eventually reversed its tentative ruling and granted the motion.
Referring at one point to Watson's arguments as "ludicrous," the court sustained the City's hearsay and lack of foundation objections to the accident site photographs; pointed out that because of the poor quality of the images, little could be gleaned from them in any event, other than that there may have been some minor cracking in the street; and went on to sustain lack of foundation and speculation objections to Dunlap's opinion, since he had no direct knowledge of the site and relied only on the sketchy information Minick presented in the form of the photographs and the police report. Watson seemed to recognize that he failed to provide sufficient foundational evidence for various documents attached as exhibits to his opposition papers, stating in an accompanying declaration that he intended to take the depositions of a custodian of records, but adding — as if an attempt to obtain
In light of the many deficiencies in Minick's opposition showing, the court agreed with the City that Minick had failed to present admissible evidence of any dangerous condition of public property, and issued an order granting summary judgment on May 13, 2014.
B. Minick's Motion for Discretionary Relief Under Section 473, Subdivision (b)
On June 19, 2014, Minick filed a motion for discretionary relief from the judgment under section 473, subdivision (b), supported by a declaration from Watson. Watson explained that he had been suffering from serious pulmonary and sleep disorders throughout 2013, and that his symptoms gradually worsened as the year progressed. He sought medical treatment and was put on a regimen of 12 different medications. In the course of treatment, he went to the emergency room four times, twice by ambulance; he consulted with five medical specialists in dozens of appointments; and he underwent radiological studies, lab studies, ultrasound studies, and sleep studies. Although Watson's underlying pulmonary condition gradually improved, he claimed to have suffered side effects from the medications, including painful spasms, episodes of disorientation, and periods of uncharacteristically strong responses to stressors.
From August through December 2013 — a time period coinciding with his efforts to prepare summary judgment opposition papers for Minick — Watson reported that the combination of symptoms from illness and the side effects from his medications were at their peak. Although at the time he felt he was adequately "soldiering on" despite the medical crisis he was in, Watson declared that, looking back on that period of time, he could see that his judgment was clouded, his thought processes were not as clear and dispassionately critical as was normal for him, and he suffered from gaps in his memory. Watson explained that he was an experienced trial lawyer, and to that point had a record of considerable success in law practice, but that in 2013, as a result of his medical condition, his ability to perform as a lawyer fell, and he made decisions in this case "that were not in keeping with [his] ordinary practice of law."
"These shortcomings were not born of any lack of effort, complacency, disregard, or lack of caring about my client or the Court," Watson declared. Rather, he told the court, they were a result of his "serious illness and the side effects of [the] prescribed medications." Moreover, because his judgment was
In further support of Minick's section 473 motion, Watson submitted declarations that provided the necessary foundation for Dunlap's opinion, and, independently of that opinion, enough evidence to show the City maintained a dangerous condition on a public street that caused Minick's accident. A declaration from Erwin established that he had gone with Minick on numerous rides, and that Minick was an experienced and safe rider. Erwin stated that he rode with Minick during the event on August 20, 2011. Toward the end of the ride, he said he was behind Minick. Immediately before and at the moment of the accident, Minick was riding at a safe speed and in a safe manner, Erwin said. According to Erwin, Minick did not suddenly brake or do anything to destabilize the bicycle, but his bicycle suddenly stopped, with the front wheel twisting sideways, catapulting him into the street. It was clear to Erwin that Minick's bicycle encountered something in the street that caused the front wheel to twist and throw him forward. Erwin could see that Minick suffered serious injuries, including to his head and shoulder, and had to be taken to the hospital by ambulance. After Minick was taken to the hospital, Erwin looked at the street where the accident occurred. He saw "many deviations in its surface, including cracks, holes, abrupt vertical rises, and bumps."
Erwin also confirmed that the photographs attached to his declaration accurately depicted the pavement at the accident site on the date of Minick's injury. The deviations in the street surface were not marked and a rider could not see their severity until coming upon them. They were dangerous to a road bicycle, like the one Minick was riding, because they could grab and twist the front wheel, popping the bicycle into the air and causing the rider to lose control. It appeared to Erwin that this uneven pavement was part of a trench that had been dug and patched. When he later returned to the site, as depicted in a photograph with him pointing at the street where Minick fell, the surface had been repaved after the accident. Thus, the photograph, which the court stated showed only a trivial defect, was not designed to show the dangerous condition, but only its location.
In addition to the Erwin declaration, Minick submitted a declaration from Scott Andrews, a resident of the area near Minick's accident. Andrews, misidentified as Scott Takami in the discovery responses Watson submitted in
Relying on the new foundational information from Erwin and Andrews, a supplemental declaration from Dunlap offered additional support for his expert opinion. Based on a review of the Erwin and Andrews declarations and various additional better, quality photographs authenticated in those declarations, Dunlap identified "a substantial series of defects at the same point identified by Mr. Erwin in his declaration." He concluded that Minick struck a depression in the street where two lines of trenching visible in the photographs intersected. He found the defect identified in the Erwin declaration and photographs consistent with the measurements in the traffic collision report. Further, based on these materials, he opined that the accident site was "in a state of significant disrepair," which posed hazards from "sudden bumps, dips, and ledges," including potholes, that could cause a bicycle rider to lose control.
Dunlap concluded that the condition of the street constituted a dangerous condition. "In my opinion," Dunlap declared, "Mr. Minick's bicycle tire most likely lost friction as it passed over the bumpy road approaching the intersection of the light trenching and main trench line discussed above, then struck the lip of the lighter trench line, such that the bicycle stopped and Mr. Minick flew off his bicycle and was injured. I may defer to an accident reconstructionist on this point, but within the scope of my expertise, this mechanism of the incident is consistent with Mr. Erwin's declaration, and is the type of danger that ... [applicable road building and maintenance] standards ... seek to guard against."
The court also thought the opposition was so poorly written that it wondered if something was seriously amiss. The papers were "strikingly not well written and, frankly, left the Court wondering — to be really honest, ... what was going on, because it didn't seem to me it was of the quality that any firm, whether it be plaintiff or defense, would provide in a — you know, in response to a well written summary judgment motion." "The issue that concerns the Court is this, and I'll be quite frank about it, is that when I sat down and spent the time that I spent to re-review the evidence and re-review the objections and to go through it piece by piece, because it was such a bundle of misstatements and misdirection from the side of the plaintiff in this
Responding directly to the City's contention that Minick still had not submitted evidence of a dangerous condition, the court stated: "If the Court were to consider today the new matter, ... there would at least be sufficient evidence for purposes of discussion about what the dangerous condition was. [¶] I mean, you do have someone ... who was riding his bicycle at the same time as plaintiff and who stopped when plaintiff tumbled and was injured and then saw the area where he fell and identified in his new declaration — again, not his original one, but the new declaration — where that occurred. And there are photographs, color photographs of greater clarity showing conditions in the roadway that at least arguably could constitute a dangerous condition of public property under 835 of the Government Code. [¶] I think there's more for purposes of discussion now than there was, substantially more now for the purposes of discussion than was presented previously to the Court, now, again, even if evidentiary objections had not been sustained at the initial filing [of] the motions."
At the conclusion of the hearing, the court announced its intention to grant discretionary relief under section 473, subdivision (b), explaining as follows: "The Court finds that Mr. Watson ... was suffering from a medical state that he was generally unaware of and there was some neglect that was involved in that. To the extent that he may or may not have been able to address his issues during the pendency of this matter is perhaps not expressly determined, but the Court does understand that he had a medical condition, that the medication condition affected his ability to exercise proper judgment, that he provided pleadings, filed pleadings and acted in such a manner that is contrary to his own practice, that the inadvertence and neglect were the result of a medical condition that he later became aware of. So that is the basis for the Court's ruling...." An order granting section 473 relief from judgment issued August 7, 2014, and the City timely sought review of that order.
A. Standard of Review
A trial court's ruling granting discretionary relief under section 473, subdivision (b) "`shall not be disturbed on appeal absent a clear showing of abuse.'" (Zamora, supra, 28 Cal.4th at p. 257, quoting State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [109 Cal.Rptr.2d 256] (State Farm).) The scope of the trial court's discretion under section 473 is broad (Elston, supra, 38 Cal.3d at p. 233) and its factual findings in the exercise of that discretion are entitled to deference (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368 [118 Cal.Rptr.2d 71]; see also In re Marriage of Connolly (1979) 23 Cal.3d 590, 598 [153 Cal.Rptr. 423, 591 P.2d 911] ["when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court"]).
On review, appellate courts have repeatedly noted that an abuse of discretion may be found only if a grant of relief "exceed[s] the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr. 902, 749 P.2d 339] (Shamblin); accord, Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271 [135 Cal.Rptr.2d 869].) Given the usual presumption of correctness accorded trial court rulings on appeal, the party attacking a trial court's grant of relief — here the City — bears the burden of demonstrating error. (State Farm, supra, 90 Cal.App.4th at p. 610, citing Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718 [21 Cal.Rptr.2d 200, 854 P.2d 1117].) By the same token, the affidavits presented by the party for whom relief was granted — here Minick — establish "`"not only the facts stated therein but also all facts which reasonably may be inferred therefrom...."'" (Zamora, supra, 28 Cal.4th at p. 258.) Moreover, the trial court may rely on its own
Any exercise of discretion must rest on correct legal premises, of course, and in that respect our review is de novo. "A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85 [87 Cal.Rptr.2d 754].) "`Discretion is compatible only with decisions "controlled by sound principles of law, ... free from partiality, not swayed by sympathy or warped by prejudice...."'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [60 Cal.Rptr.2d 93, 928 P.2d 1171].) "`[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.'" (Ibid.)
B. Applicable Principles Under the Discretionary Relief Portion of Section 473, Subdivision (b)
Section 473, subdivision (b), provides, in pertinent part: "The 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.... No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
This case arises solely under the discretionary relief provision. To obtain discretionary relief for attorney error under section 473, subdivision (b), counsel's neglect must be excusable. (Zamora, supra, 28 Cal.4th at p. 258.) Because attorneys as members of a learned profession are held to a standard of conduct befitting those with specialized training and skill, and because as a general matter clients are bound by the judgments and decisions of their chosen counsel, the excusability standard under section 473 is often difficult to meet where a client seeks relief for the errors or omissions of his or her attorney. That is because "[i]n determining whether [an] attorney's mistake or inadvertence was excusable, `the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error.' ... [Citation.] ... [T]he discretionary relief provision of section 473 only permits relief from attorney error `fairly imputable to the client, i.e., mistakes anyone could have made.'" (Garcia, supra, 58 Cal.App.4th at p. 682.) `Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.....' (Ibid.)" (Zamora, supra, 28 Cal.4th at p. 258.)
Numerous cases have applied this principle in the context of failed attempts to defend against summary judgment — a phase of civil litigation that is among the most rigorous and exacting prior to trial — and in none of these cases was attorney error found to be excusable. (See Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 [130 Cal.Rptr.2d 263] ["Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion. [Citation.] ... Counsel's failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473."]; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354-1355 [37 Cal.Rptr.3d 1] [failure to include a request for a continuance pursuant to § 437c, subd. (h) in opposition to summary judgment does not constitute excusable neglect]; Martin v. Johnson (1979) 88 Cal.App.3d 595, 606-607 [151 Cal.Rptr. 816] [no abuse of
Garcia, supra, 58 Cal.App.4th 674, decided by our colleagues in Division Two of this district, is an especially noteworthy summary judgment case where discretionary relief under section 473 for attorney error was denied, since the California Supreme Court relied on it and quoted from it in Zamora. (See Zamora, supra, 28 Cal.4th at pp. 257-258.) The summary judgment motion in Garcia turned on the scope and meaning of a settlement agreement. The trial court initially granted summary judgment for defendant Hejmadi based on the plain language of the agreement, but later granted a motion to vacate under section 473, subdivision (b). (Garcia, supra, at pp. 678-680.) In support of the section 473 motion, plaintiff Garcia submitted late supplemental declarations attesting to oral communications that allegedly raised triable issues concerning the parties' mutual intent when the agreement was signed. (Garcia, supra, at pp. 678-680.) Garcia's counsel admitted his failure to submit these declarations earlier was a mistake, but explained his tardiness on grounds of "inadvertence and time pressure" in his law practice. (Id. at p. 679.) That excuse failed on appeal.
Reversing the trial court's grant of section 473 relief, the panel in Garcia explained: "The record describes the tardy presentation of an alternative argument based upon facts and law at all times known to Garcia's counsel.... The `inadvertence' asserted by Garcia's counsel is no more than late recognition of inadequate briefing and failure to cite more specifically to a paragraph in a declaration.... [¶] Garcia's presumption that consideration of the late-filed papers ... would have produced a different result begs the question. The issue is not whether the original opposition was insufficient to prevail, but rather whether the reason advanced for its insufficiency was `excusable' within the meaning of section 473. The `reasonably prudent person standard' ... gives an attorney the benefit of such relief only where the mistake is one which might ordinarily be made by a person with no special training or skill." (Garcia, supra, 58 Cal.App.4th at pp. 683-684.) Distraction due to the "press of business" was not such a mistake, the court held. "[T]he stress admittedly attending modern legal practice" does not
C. Cognitive Incapacity as a Ground for Relief
In resolving Minick's motion, the court was faced with two competing versions of the facts. Minick argued, on the one hand, that the best explanation of the situation was cognitive incapacity, not professional dereliction. The City argued, on the other hand, that Watson's opposition papers, despite their defects, could be considered at least minimally competent. Having seen Watson in physical distress at one point in open court and having reviewed his work product, the court seems to have accepted Minick's point of view. Because Watson's opposition papers were such an unintelligible mess, the court explained at the hearing on Minick's section 473 motion that it had granted summary judgment despite harboring reservations that something was amiss. Watson's declaration apparently provided a credible explanation, and the court accepted it. Under these circumstances, we cannot say the court's exercise of discretion under section 473 "exceeded the bounds of reason." (Shamblin, supra, 44 Cal.3d at p. 478.)
D. The Argument That Discretionary Relief Under Section 473, Subdivision (b), Is Limited to Defaults or Default-equivalent Conduct
The City never seriously questions the truth of Watson's explanation that a combination of serious illness and heavy medication rendered him incapable of carrying out his duties as a lawyer. Instead, it contends Minick's declaration of his own incapacity is insufficient to warrant relief under section 473 as a matter of law. The main thrust of the City's argument is that absent an actual default — here, for example, failure to file any summary judgment opposition at all (see, e.g., Lynch v. Spilman (1967) 67 Cal.2d 251, 258 [62 Cal.Rptr. 12, 431 P.2d 636] [affirming ordervacating summary judgment where attorneys failed to appear at hearing or file opposition papers]) — discretionary relief under section 473, subdivision (b), is unavailable. Attempted but ultimately unsuccessful advocacy can never constitute excusable neglect, the City argues, for if the rule were otherwise, requests for discretionary section 473 relief based on attorney error would require courts to undertake open-ended evaluation of deficient lawyering performance, miring them, inevitably, in questions of legal strategy and judgment.
For this argument, the City relies on Garcia. Because that case involved not "a default but rather a motion lost, on its merits, after opposition was filed," the Garcia court viewed section 473 as inapplicable. (Garcia, supra, 58 Cal.App.4th at p. 683.) The court arrived at this conclusion based on cases limiting the applicability of the mandatory portion of section 473, subdivision (b) to defaults and default-equivalent dismissals. (Garcia, supra, at p. 683; accord, Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082 [67 Cal.Rptr.2d 475]
E. Transit Ads and the Sufficiency of Minick's Showing of His Own Incapacity
In addition to Garcia, the City cites Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275 [75 Cal.Rptr. 848] (Transit Ads), a case in which an attorney's illness was deemed insufficient to warrant relief under section 473. In Transit Ads, the trial court entered a default judgment against the defendant. (Transit Ads, supra, at p. 278.) The defendant's attorney then sought relief on the ground that he had been ill, asserting that medication he took as part of a weight loss program affected his general mental and physical condition such that he was absent from his office for long periods of time and was unable to conduct his law practice properly. Although the attorney engaged a colleague to prepare and file an answer, he did not keep his appointments with the assisting colleague and he did not communicate the urgent need to prepare and file an answer. (Id. at p. 286.)
The Court of Appeal agreed that "[i]llness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect." (Transit Ads, supra, 270 Cal.App.2d at p. 280.) But the court went on to find the neglect at issue in that case was inexcusable because the attorney was aware of his medical condition yet failed to take the steps a reasonably prudent person would have taken. Despite being aware that his medical difficulties were hindering his practice, counsel made no effort to seek assistance from colleagues or to contact his client about the possibility of retaining someone else. (Id. at p. 287.) Thus,
Cases decided under section 473 are in accord. Without requiring the declaration of a physician, a number of California decisions have upheld orders granting discretionary relief under section 473, subdivision (b), because of counsel's illness. (See, e.g., Contreras v. Blue Cross of California (1988) 199 Cal.App.3d 945, 951 [245 Cal.Rptr. 258] [trial court did not abuse its discretion in finding that attorney's failure to file timely amended complaint was excusable where she had fractured her wrist and elbow]; Robinson v. Varela (1977) 67 Cal.App.3d 611, 616 [136 Cal.Rptr. 783] [trial court did not abuse its discretion in finding that attorney's failure to file a timely answer was excusable in part because attorney was suffering from an unspecified illness]; Arnke v. Lazzari Fuel Co. (1962) 202 Cal.App.2d 278, 281-282 [20 Cal.Rptr. 762] [counsel's declaration that he failed to file a
F. Minick's Diligence in Filing for Section 473 Relief and Prejudice to the City
In granting relief from judgment, the trial court implicitly found that Minick filed his motion "within a reasonable time." We review that implied finding for abuse of discretion. (See County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1347 [126 Cal.Rptr.2d 350] [trial court's implied finding that the moving party was diligent is reviewed for abuse of discretion].) What constitutes "`a reasonable time in any case depends upon the circumstances of that particular case'" (Martin v. Taylor (1968) 267 Cal.App.2d 112, 114 [72 Cal.Rptr. 847]) and is a question of fact for the trial court (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1145 [198 Cal.Rptr.3d 763]). Here, the court entered judgment on May 13, 2014, and notice of entry of judgment was served by mail on May 15. The date of entry of judgment was the point in time at which a need for section 473 relief arose (see Huh v. Wang, supra, 158 Cal.App.4th at p. 1421 [the "critical triggering event for
Numerous courts have found no abuse of discretion in granting relief where the section 473 motions at issue were filed seven to 10 weeks after entry of judgment. (See, e.g., Freeman v. Goldberg (1961) 55 Cal.2d 622, 625 [12 Cal.Rptr. 668, 361 P.2d 244] [10-week delay]; Hallett v. Slaughter (1943) 22 Cal.2d 552, 554, 557 [140 P.2d 3] [seven-week delay]; Outdoor Imports, Inc. v. Stanoff (1970) 7 Cal.App.3d 518, 523-524 [86 Cal.Rptr. 593] [nine-week delay].) A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay. (See Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 532 [190 P.2d 593]; see also Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184 [75 Cal.Rptr.2d 809] [stating that the "three-month unofficial `standard'" established in Benjamin "remains true today"].) By any reckoning, given this precedent, Minick met the standard of acting "within a reasonable time."
Finally, as to the issue of prejudice, the City claims Minick, having seen how the court analyzed its summary judgment motion, in effect obtained an advisory opinion on the hazardous condition issue under Government Code section 835, giving him an unfair tactical advantage in further litigation with the City on that issue. We have no doubt the grant of relief here improved Minick's position in his effort to defeat the City's motion, but that kind of "prejudice" is inherent in any grant of section 473 relief. Coming at the prejudice issue from another angle, the City argues it is bound to incur unfair financial burden due to the need to re-litigate issues presented in its summary judgment motion. On this point, the City once again puts greater stock in the finality of an interim order than is warranted. Trial courts always have discretion to revisit interim orders in service of the paramount goal of fair and accurate decisionmaking. (See, e.g., Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109 [29 Cal.Rptr.3d 249, 112 P.3d 636] [after denial of summary judgment motion and filing of second summary judgment motion on the same grounds a year later, trial court may may reconsider its original denial sua sponte in the absence of new facts or law]; In re Marriage of Barthold (2008) 158 Cal.App.4th. 1301 [70 Cal.Rptr.3d 691].) The City may well have incurred some additional cost as a result of the court's decision to revisit its initial summary judgment decision by granting section 473 relief, but that was unavoidable. Where the statute by its terms applies, and a court grants discretionary relief reopening summary judgment proceedings, some replowing of ground will always be necessary. The alternative the City suggests, in any event, would give it undeserved windfall protection from exposure to Minick's claim.
The trial court's order of August 7, 2014, granting Minick relief under section 473, subdivision (b), from the grant of summary judgment against him is affirmed.
Ruvolo, P. J., and Reardon, J., concurred.