Filed 3/14/13 Di Benedetto v. Lais CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

LAWRENCE DI BENEDETTO,
                                                                                           F064372
         Plaintiff and Appellant,
                                                                                (Super. Ct. No. 08C0168)
                   v.

J. LAIS et al.,                                                                          OPINION
         Defendants and Respondents.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
         Lawrence Di Bendetto, in pro. per., for Plaintiff and Appellant.
         Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney
General, Thomas S. Patterson and Kenneth T. Roost, Deputy Attorneys General, for
Defendants and Respondents.
                                                        -ooOoo-



*        Before Cornell, Acting P.J., Detjen, J. and Peña, J.
       Plaintiff and appellant Lawrence Di Benedetto appeals from an order dismissing
his civil action. The Attorney General, representing defendants and respondents J. Lais
and L. Smart, two prison officials,1 concedes that we should reverse the judgment of
dismissal. Having reviewed the briefs and the record, we concur.
       The trial court previously sustained defendants’ demurrer to plaintiff’s second
amended complaint, denied leave to amend, and entered judgment against plaintiff.
Although concluding the demurrer was properly sustained, this court reversed the
judgment, concluding that plaintiff was entitled to further amend the complaint to attempt
to state a cause of action. Our dispositional language included the following: “The
matter is remanded to the superior court, and that court shall modify its May 18, 2009,
order so as to grant [plaintiff] a specified reasonable amount of time within which to
amend his pleading.” (Di Benedetto v. Lais, supra, F060165.)
       This court’s remittitur issued in July 2011. On October 6, 2011, defendants filed a
notice of motion to dismiss the case because plaintiff had failed to file an amended
complaint within 30 days of issuance of the remittitur.2 On October 31, 2011, plaintiff
filed opposition, asserting he was unaware of Code of Civil Procedure section 472b, and
seeking relief from the default because of his excusable mistake in relying on the
language in the dispositional paragraph of the appellate opinion. (The record on appeal
does not contain the documents plaintiff apparently filed in support of the opposition, but
defendants do not disagree with plaintiff’s characterization of the contents of those


1     This matter was before the Court of Appeal under the caption Di Benedetto v. Lais
(May 11, 2011, F060165) [nonpub. opn.]. We take judicial notice of the opinion in that
case.
2       Code of Civil Procedure section 472b states, in relevant part: “When an order
sustaining a demurrer without leave to amend is reversed or otherwise remanded by any
order issued by a reviewing court, any amended complaint shall be filed within 30 days
after the clerk of the reviewing court mails notice of the issuance of the remittitur.”



                                             2.
documents. In the interest of justice and judicial economy, we deem this agreement
concerning the contents of the supporting papers to be an agreed statement as
contemplated by California Rules of Court, rule 8.836(a).) At a hearing on November 8,
2011, the court granted the motion to dismiss. A formal order was filed December 12,
2011, and plaintiff appealed.
       Code of Civil Procedure section 473, subdivision (b), provides, in part: “The court
may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect.”3 Except in those instances in which the party’s failure to
act in a timely manner is considered jurisdictional, such as filing a motion for new trial or
notice of appeal, section 473, subdivision (b), is to be liberally construed with a view to
determination of actions on their merits. (Maynard v. Brandon (2005) 36 Cal.4th 364,
371-372.) Doubts about application of the section must be resolved in favor of the party
seeking relief from default. (Id. at p. 372.) A trial court’s ruling on section 473,
subdivision (b) relief is reviewed for abuse of discretion. (Gamet v. Blanchard (2001) 91
Cal.App.4th 1276, 1283.)
       Three primary factors lead us to conclude reversal is required in the present case.
First and foremost, plaintiff plainly was misled by the language in our opinion in
F060165, which reasonably implied that there would be a further order of the trial court
setting a schedule for the filing of a third amended complaint. (See Gamet v. Blanchard,
supra, 91 Cal.App.4th at pp. 1284-1285.) Second, plaintiff acted promptly once his
default was brought to his attention by defendants’ motion to dismiss; plaintiff’s

3      The statute requires that an application for such relief be accompanied by a copy
of the proposed pleading for which permission to file is sought. In this case, it appears
the clerk’s office rejected the filing of a third amended complaint, attached to plaintiff’s
opposition to the dismissal motion, with a letter informing plaintiff he was required to
seek leave of the court prior to filing the amended complaint.



                                              3.
opposition to the motion was timely, included an application for relief from default, and
attempted to submit the amended pleading in question. Third, defendants were not
significantly prejudiced by plaintiff’s default (see 8 Witkin, Cal. Proc. (5th ed. 2008)
Attack on Judgment in Trial Court, § 191, p. 791), and have conceded that relief from the
default is appropriate. In light of these circumstances, the trial court abused its discretion
in denying plaintiff’s application for relief from his failure to timely file the third
amended complaint.
                                       DISPOSITION
       The judgment is reversed. Plaintiff shall have the opportunity to file his third
amended complaint within 30 days after the clerk of this court mails notice of issuance of
the remittitur in this appeal. The parties shall each bear their own costs on appeal.




                                               4.
