Todd

After the trial court dismissed her case for failure to comply with a discovery order, plaintiff moved to vacate the dismissal under Code of Civil Procedure section 473. In support of the motion, plaintiff’s counsel submitted a declaration stating that plaintiff’s ill health and other personal problems were the primary reasons for not complying with the order. The trial court found that those reasons did not constitute excusable neglect and tentatively decided to deny the motion. However, plaintiff’s counsel then filed a supplemental declaration stating, contrary to the previous one, that the violation of the order was primarily his own fault. The trial court vacated the dismissal based on counsel’s supplemental declaration.

On appeal, defendant claims that the trial court abused its discretion in granting plaintiff’s motion to vacate the dismissal. We agree and accordingly reverse the order vacating the dismissal.

Background

On October 10, 1990, approximately two days before the statute of limitations would have run, plaintiff filed her “slip and fall” action against defendant Thrifty Corporation (Thrifty). She waited nearly two more years before serving the…