The Court of Appeal holds that you can't get mandatory relief from an erroneous dismissal (i.e., employ CCP 473(b)) when the dismissal that you're challenging is your own request for dismissal without prejudice. Even if you made a mistake based on erroneous legal advice, that's your bad. Had the case been dismissed by the court or on a motion, sure, you'd get relief. But since this was your call, not the action of someone else, CCP 473(b) doesn't apply.
Okay. Good to know, at least.
The holding is in a context that's somewhat interesting, however. The plaintiff here filed her lawsuit (for discrimination) pro per, and then sought to get an attorney to represent her. The attorney said "Sure, I'll take your case, but let's get rid of this pro per thing first -- dismiss it without prejudice, and then I'll file a new one for you that looks better." Which she did.
But after the first lawsuit was dismissed, the lawyer said: "Oops. I didn't know how FEHA suits worked. Seems like now, after the dismissal, your lawsuit is procedurally barred."
Which probably also made the attorney go back and check his malpractice coverage.
Seeking a way out, the attorney then said he'd represent the plaintiff on a limited basis to get the first lawsuit reinstated. That way, presumably, no malpractice claim for the bad advice. (To be clear: the word 'malpractice' doesn't exist anywhere in the opinion, but I'm just reading between the lines for a possible explanation for how this case came to be; pure speculation and opinion, obviously.)
So the attorney files an ex parte request, which the trial court denies, without prejudice to a noticed motion. So the attorney agrees to another limited representation agreement where he'll file a noticed motion, which he does, but the trial court again denies it. Hence the subsequent appeal.
So a nice attempt to get out of the malpractice claim by using CCP 473(b). Albeit one that fails.
On the other side, though, I thought it somewhat interesting that Kaiser -- the defendant -- thought it tactically advantageous to oppose the motion for relief from default, as well as the resulting appeal. On the one hand, that's the obvious move. It gets them out of the lawsuit without having to defend the merits. Typically, the right call. If only because it avoids the transaction costs of defending the thing.
But, on the other hand, they get out of that suit, but, presumably, into another. Now the plaintiff may file a malpractice claim against her would-be lawyer based on the bad advice. In which she'll have to prove her case-within-a-case against Kaiser. So now it'll have to defend all those depositions etc. in the malpractice suit. Plus it had to file all those briefs in the trial court and on appeal defending the refusal to reinstate the underlying action.
So some contrary transaction costs there as well.
All that, plus the risk -- which is at least nonzero -- that all this would be for naught if the Court of Appeal held that CCP 473(b) applied.
In the end, I suspect that Kaiser would make the same call again. But it's not an easy one. Sometimes, choosing a battle may not be the wisest call. Even when it's typically the most straightforward one -- and one that you might well win.
