Continental Lynwood v. Lynwood Redevelopment
Filed 3/15/07 Continental Lynwood v. Lynwood Redevelopment CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CONTINENTAL LYNWOOD, Plaintiff and Appellant, v. LYNWOOD REDEVELOPMENT AGENCY, Defendant and Respondent. | B181483 (Los Angeles County Super. Ct. No. BC292260) ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT |
THE COURT:
It is ordered that the opinion filed herein on February 20, 2007 be modified as follows:
At the end of the first incomplete paragraph at the top of page 6, after the sentence ending but also essentially abandoned Continental after filing the unverified complaint to initiate the action. add as a footnote 3 the following footnote, which will require renumbering of all subsequent footnotes:
3 Relying in substantial part on discussions of a partys duty of due diligence contained in cases involving dismissals for failure to prosecute (e.g., Wilshire Bundy Corp. v. Auerbach (1991) 228 Cal.App.3d 1280 [dismissal for failure to commence trial within five years pursuant to 583.310]; Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983 [dismissal for failure to commence trial within three years pursuant to 583.320, 583.360]), LRA contends Continentals failure to aggressively monitor its counsels activities and to discover his derelictions constitutes contributory fault by Continental that precludes mandatory relief under section 473, subdivision (b). (See Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248 [a party can rely on the mandatory provision of section 473 only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal].) As discussed in Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 930, however, the few cases denying mandatory relief to a party based on its contributory role in the resulting default or dismissal have either involved intentional misconduct by the clients or instances in which the client was the sole and clear cause of the default or dismissal. (Ibid.) To the extent Continentals reliance on its counsel to properly perform the services he was retained to do can be categorized as a mistake or fault at all, and assuming that mistake was an additional cause in fact of the entry of the dismissal in this case, like the court in Benedict, [w]e find nothing in section 473, subdivision (b) or the policy underlying it to justify precluding relief when that type of client conduct is a contributing cause of a default. (Benedict, at p. 930; accord, SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 519 [Even if we were to assume that SJP was equally responsible for the dismissal in light of its failure to obtain representation in the civil action, [t]he statute merely requires that the attorneys conduct be a cause in fact of the entry of default [citation], but does not indicate that it must be the only cause.].)
Respondents petition for rehearing is denied.
_____________________________________________________________________
PERLUSS, P. J. JOHNSON, J. WOODS, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
