DISCUSSION

Plaintiff contends he was entitled to mandatory relief from the order sustaining the demurrer without leave to amend (and the resulting dismissal), based on counsel‟s

2 affidavit of fault, and therefore the trial court erred in denying his motion under section 473, subdivision (b).2 The argument fails. The mandatory relief provision of section 473, subdivision (b), based on an attorney‟s affidavit of fault, requires the court, if certain prerequisites are met, to vacate a “default,” a “default judgment,” or a “dismissal.” (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143 (English).) In this context, the word “dismissal” is construed as having a limited meaning, similar to the term “default judgment.” (Id. at p. 145.) In adding the word “dismissal” to the mandatory provision of section 473, subdivision (b),3 “the Legislature „intended to reach only those dismissals which occur through failure to oppose a dismissal motion—the only dismissals which are procedurally equivalent to a default.‟ [Citation.]” (English, at p. 145, italics added.) Various decisions have “construed the word „dismissal‟ in the mandatory provision of section 473(b) as having a limited meaning, to prevent that provision „from being used indiscriminately by plaintiffs‟ attorneys as a „perfect escape hatch‟ [citation] to undo dismissals of civil cases.‟ [Citation.] Thus, [courts] have held that the mandatory provision does not apply to: (1) a dismissal following the sustaining of a demurrer without leave to amend on the ground the statute of limitations had run [citation]; (2) a voluntary dismissal pursuant to a settlement agreement [citation]; and (3) a mandatory dismissal for failure to serve a complaint within three years [citation].” (English, supra, 94 Cal.App.4th at pp. 145–146.) In the instant case, plaintiff relied on counsel‟s affidavit of fault to excuse his failure to oppose defendant‟s demurrer to the FAC. Because the nature of said proceeding was a demurrer, not a motion for involuntary dismissal, the proceeding was

2 We give de novo review to applications of this provision. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) 3 In 1992, the Legislature amended section 473 by inserting the word “dismissal” into the mandatory provision of the statute to give plaintiffs some of the mandatory relief that had been available to defendants when a default judgment has been entered against them. (Stats. 1992, ch. 876, § 4, pp. 4071–4072; see Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1819–1820 [discussing legislative history of 1992 amendment].)

3 not the “ „functional equivalent‟ ” of a default. (English, supra, 94 Cal.App.4th at p. 145.) We note plaintiff took many substantive steps in this litigation, including the filing of an amended complaint (in response to a prior demurrer), and appearing at the hearing for the demurrer at issue. At this hearing, the trial court noted that plaintiff had failed to file and opposition before it sustained the demurrer without leave to amend. Counsel thus had the opportunity to argue at the hearing. Nor did he make any request for permission to file a belated opposition. Thus, it cannot be said that plaintiff was denied his day in court.4 Accordingly, the mandatory relief provision of section 473, subdivision (b), has no application here.

DISPOSITION

The order is affirmed.

_________________________ Dondero, Acting P. J.

We concur:

_________________________ Banke, J.

_________________________ Sepulveda, J.

4 Our Supreme Court has adopted the “lose their day in court” rationale for the mandatory provision of section 473, subdivision (b). In Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257, that court held: “The purpose of this provision „was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.‟ [Citation.]”  Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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