Graham
Graham v. Beers
Opinion
Opinion
Gilbert, J.
An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney’s mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.
After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.
Facts
Appellants, James and Francine Graham and their children, were passengers in a vehicle driven off a highway by Michael Beers. Beers died as a result of this accident and the Grahams were severely injured.
On November 7, 1989, the Grahams filed this action against respondent, Patricia Beers, who is the administratrix of the estate of Michael Beers. Beers filed a cross-complaint against the County of San Luis Obispo and others.