Caldwell

WOODS (Fred), J.

Plaintiff contends that the court abused its discretion when it denied his motion to set aside an order of dismissal. We affirm.

On September 28, 1990, appellant filed a complaint for wrongful discharge in violation of public policy and related causes of action. After a series of demurrers and motions to strike, ultimately, the third amended complaint became the operative pleading.

On August 28, 1992, after ruling on respondent's motion for summary adjudication of issues and finding that there were no triable issues of fact as to the causes of action for discharge in violation of public policy and for violation of various Labor Code sections, the court announced the next court date. Both attorneys believed the date to be October 19, 1992; in fact, the date was October 9, 1992.

Appellant filed a motion for new trial on the basis that the court misapplied the standard for termination in violation of public policy. The motion was calendared for October 2, and then continued on the court's own motion to October 16.

On October 9, there being no appearance by either party, the court ordered the case be dismissed pursuant to Code of Civil Procedure section…

Plaintiff contends that the court abused its discretion when it denied his motion to set aside an order of dismissal. We affirm.

Factual and Procedural Synopsis

On September 28, 1990, appellant filed a complaint for wrongful discharge in violation of public policy and related causes of action. After a series of demurrers and motions to strike, ultimately, the third amended complaint became the operative pleading.

On August 28, 1992, after ruling on respondent’s motion for summary adjudication of issues and finding that there were no triable issues of fact as to the causes of action for discharge in violation of public policy and for violation of various Labor Code sections, the court announced the next court date. Both attorneys believed the date to be October 19, 1992; in fact, the date was October 9, 1992.

Appellant filed a motion for new trial on the basis that the court misapplied the standard for termination in violation of public policy. The motion was calendared for October 2, and then continued on the court’s own motion to October 16.

On October 9, there being no appearance by either party, the court ordered the case be dismissed pursuant to Code of Civil…

I respectfully dissent.

In my view, it was an abuse of discretion not to allow appellant the opportunity for the Code of Civil Procedure section 473 1 relief to which he was so clearly entitled if the court reached the merits. This is not a case where the petitioning party made a mistake he must plead with the court to excuse. Here the mistake almost certainly was committed by the judge or other court personnel, not by either party. 2 For the court to avoid confronting and remedying its own mistake by invoking a time bar it was not required to impose constitutes just the sort of discretionary decision the appellate court should view with suspicion.

At the time appellant sought relief from the trial court’s mistaken dismissal of his case a full three months remained before expiration of the six-month outer time limit for pursuing a remedy under section 473. It is true the law also grants trial courts discretion to deny section 473 petitions unless they are filed in a “reasonable time” (Smith v. Pelton Water Wheel Co. (1907) 151 Cal. 394, 397 [ 90 P. 934 ].) However, that discretion must be exercised reasonably. The three-month delay in this case is well within the time frame…