Huens

I concur in the judgment. I write separately to make a grammatical point.

At issue is the application of the 1992 amendment to subdivision (b) of Code of Civil Procedure section 473 to a voluntary dismissal of the case by the plaintiff. The amendment added the term “dismissal” in pertinent part as follows: “Notwithstanding any other requirements of this section, the court shall [upon application and the attorney’s affidavit attesting to his or her mistake etc.], vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Italics added.)

The majority reason that the “use of the word ‘against’ [in the phrase “dismissal entered against his or her client”] limits the class of targeted dismissals and makes clear that only involuntary dismissals are affected.” (Maj. opn., ante, at p. 264, original italics.) The argument suffers a grammatical defect.

A voluntary dismissal is “entered against”…

In this case we hold that the 1992 amendment to Code of Civil Procedure section 473 (further unspecified statutory references are to this code), which provides for mandatory relief from “dismissal” resulting from attorney mistake, neglect or inadvertence, does not apply to a voluntary dismissal entered pursuant to a settlement agreement.

Plaintiff Jennie Lorraine Huens appeals from an order denying her section 473 motion to vacate a dismissal of defendant Cynthia Kay Tatum entered into as part of a settlement agreement with all defendants in the case. Shortly after the settlement was executed and the defendants dismissed, plaintiff’s attorney discovered he had miscalculated the amount of insurance that was available. His section 473 motion to vacate the dismissal based on this “mistake” was denied. We affirm the trial court order.

Factual and Procedural Background

Plaintiff filed a complaint for personal injuries she sustained when her car was struck by a vehicle driven by defendant Cynthia Kay Tatum and owned by defendant Bonnie Boyd. Both plaintiff and Boyd had insurance coverage with United States Automobile Association (USAA). Boyd had a $50,000 policy on her…