Bermudez v. Franklin Mfg. Co
Filed 2/17/06 Bermudez v. Franklin Mfg. Co. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication
FOURTH APPELLATE DISTRICT
DIVISION THREE
| MARIA BERMUDEZ, Plaintiff and Appellant, v. FRANKLIN MANUFACTURING COMPANY et al., Defendants and Respondents. | G035068 (Super. Ct. No. 00CC03758) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, William M. Monroe, Judge. Reversed and remanded.
Robert J. Wheeler; Tory M. Pankopf for Plaintiff and Appellant.
Knapp, Petersen & Clarke and K. Stephen Tang for Defendants and Respondents Franklin Manufacturing Company, Foilmark Manufacturing Corp., Kensol-Franklin, Inc., and Kensol-Olsenmark, Inc.
LaFollette, Johnson, DeHaas, Fesler & Ames, Michael Packer, Douglas G. Dickson and Blaine A. Noblett for Defendant and Respondent Fabco Air, Inc.
A personal injury plaintiff moved to set aside certain settlements that her former attorney had purportedly made without her knowledge or consent, as well as any dismissals entered with respect to the settling defendants. The court, applying the six-month deadline of Code of Civil Procedure section 473, subdivision (b), denied the motion on the ground that it was untimely filed. The court erred in so doing. The six-month deadline of section 473, subdivision (b) is inapplicable.
The order denying the set-aside motion is reversed. The matter is remanded to the trial court, for the taking of evidence and the holding of a hearing, on whether the plaintiff has presented strong and convincing proof that her former attorney acted beyond the scope of his authority in settling the claims at issue, and if so, whether the plaintiff filed her motion within a reasonable period of time after learning of the unauthorized settlements. In determining whether the motion was filed within a reasonable period of time, the court shall balance various factors, including but not limited to, when the plaintiff and her substitute attorneys knew or should have known of the unauthorized settlements, the reasons for the delay in filing the set-aside motion, whether the settling defendants were innocent parties, and whether those defendants would suffer undue prejudice were the plaintiff's motion granted.
I
FACTS
A. Prior Appeal:
This lawsuit has been before this court previously, albeit in a very different context. To provide a sense of continuity, we will give a brief description of the prior matter on appeal.
As we stated in our prior opinion, â€
