CASE#: MSC13-00528
CASE NAME: SIOSON vs. WELLS FARGO
HEARING ON REQUEST FOR RELIEF FROM JUDGMENT FOR ATTORNEY NEGLIGENCE
( FILED 02-20-14 BY PLAINTIFFS )
* TENTATIVE RULING: *

Plaintiffs’ Motion for Relief from Judgment is denied. (Cal. Code Civ. Proc., section 473, subd. (b).)

To the extent Plaintiffs are seeking mandatory relief pursuant to CCP, section 473(b), based on an attorney affidavit of fault, such relief is not available here. (See, Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616 [the atty affidavit provision of section 473(b) does not apply to a dismissal following the Pltf’s failure to timely amend her complaint after a demurrer is sustained.]) (See also, Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1397; Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45-46.)

Plaintiffs’ request for relief also fails to the extent they are seeking discretionary relief under CCP, section 473(b). A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable. In determining whether the 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. Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.

In this instance, attorney Quadra’s mistake or neglect was not excusable, but rather a part of a continuing pattern of failure to oppose calendared motions. Attorney Quadra’s intention was to file an amended complaint as of right. However, under CCP, section 472, a plaintiff may only amend as a matter of course before an answer or demurrer is filed or before trial of the issue of law raised in the demurrer. At that point “the plaintiff’s right to amend as a matter of course is gone.” (Loser v. E. R. Bacon Co. (1962) 201 Cal. App. 2d 387, 389.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (See CCP, sections 472, 473; People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 783.) In the case at bar, the Court has ruled on both the demurrer to the original Complaint, and the demurrer to the First Amended Complaint. In any event, a request to file an amended pleading would be denied. A review of the proposed Second Amended Complaint shows that it does not cure the defects that were at issue in both of the prior demurrers.

Defendants to prepare the Order.