Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System

In Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1817-1824 [ 41 Cal.Rptr.2d 182 ], we held that a plaintiff may obtain mandatory relief under Code of Civil Procedure section 473 from a dismissal entered under the discretionary dismissal statutes (§ 583.410 et seq.) only if it occurred because the plaintiff’s attorney failed to oppose the defendant’s motion for dismissal; the plaintiff may not obtain mandatory relief merely by filing an affidavit in which his or her counsel avows that the dismissal came about through counsel’s fault. Here we hold that, for all the reasons stated in Peltier, section 473 does not mandate relief from dismissal for failure to serve a complaint within three years (§ 583.210 et seq.) where the plaintiff’s counsel files an affidavit avowing fault.

Plaintiff Bernasconi Commercial Real Estate originally filed suit against two named defendants and fifty Does, then later named four other defendants in place of Does (§ 474). With one business day remaining before the three-year anniversary of the complaint’s filing, plaintiff named defendants St. Joseph’s Regional Health Care (sic: Healthcare) System and St. Joseph’s Heathcare (sic:…