Jerry's Shell v. Equilon Enterprises, LLC

The underlying case was dismissed by the trial court as a sanction for repeated failure to respond to discovery and comply with discovery orders. Several months after terminating sanctions were issued, appellants sought to revive the litigation through a motion for relief from default or dismissal under Code of Civil Procedure section 473, subdivision (b) (section 473(b)). The court denied the motion. We conclude that dismissal was the result of an intentional strategic decision on the part of appellants’ counsel, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Complaint

Appellants Jerry’s Shell and 21 others 1 brought suit against Equilon Enterprises, LLC, doing business as Shell Oil Products US (Equilon) and *1061 certain individuals.* 2 The complaint essentially alleged that Equilon, a joint enterprise between Shell and Texaco, developed a plan to convert independent franchise dealers’ stations into company-operated stations or put them in the hands of the individual defendants, who were said to be “favored” dealers. It was alleged that Equilon gave preferential treatment to the favored dealers and made it difficult or impossible for appellants to compete through…

I concur in the opinion except for part II of the Discussion, as to which I concur in the result. I continue to believe that Yeap v. Leake (1997) 60 Cal.App.4th 591 [ 70 Cal.Rptr.2d 680 ] was wrongly decided with respect to its analysis of the breadth of the “mea culpa” provision of Code of Civil Procedure section 473, subdivision (b). (See Yeap v. Leake, supra, 60 Cal.App.4th at p. 602 , and cases that have agreed with the dissenting opinion in that case: English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 [ 114 Cal.Rptr.2d 93 ]; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 [ 33 Cal.Rptr.3d 639 ].) Certainly, the failure to comply with discovery orders, resulting in the ultimate sanction of dismissal, cannot be fitted within the rationale of that statute. I would simply say so. But I do agree that even if Yeap v. Leake were correct in its analysis, it would not aid the appellant in this case.

The underlying case was dismissed by the trial court as a sanction for repeated failure to respond to discovery and comply with discovery orders. Several months after terminating sanctions were issued, appellants sought to revive the litigation through a motion for relief from default or dismissal under Code of Civil Procedure section 473, subdivision (b) (section 473(b)). The court denied the motion. We conclude that dismissal was the result of an intentional strategic decision on the part of appellants' counsel, and affirm.

Appellants Jerry's Shell and 21 others, [1] brought suit against Equilon Enterprises, LLC, doing business as (dba) Shell Oil Products U.S. (Equilon) and certain individuals. [2] The complaint essentially alleged that Equilon, a joint enterprise between Shell and Texaco, developed a plan to convert independent franchise dealers' stations into company-operated stations or put them in the hands of the individual defendants, who were said to be "favored" dealers. It was alleged that Equilon gave preferential treatment to the favored dealers and made it difficult or impossible for appellants to compete through various practices, including predatory…