Filed 10/4/13 Adkins v. EMC Mortgage Corp. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


DORAN ADKINS,
         Plaintiff and Appellant,
                                                                     A135574
v.
EMC Mortgage Corporation,                                            (Contra Costa County
                                                                     Super. Ct. No. MSC1001661)
         Defendant and Respondent.

         Plaintiff Doran Adkins appeals a judgment dismissing his action against defendant
and respondent EMC Mortgage Corporation, following the sustaining of its demurrer to
his first amended complaint (FAC) without leave to amend. The essential issue presented
is whether plaintiff was entitled to mandatory relief under Code of Civil Procedure
section 473, subdivision (b),1 based on his counsel‟s failure to file an opposition to the
demurrer. Because mandatory relief does not lie in these circumstances, the trial court
properly denied plaintiff‟s motion for relief under section 473. The judgment is affirmed.
                              FACTUAL AND PROCEDURAL BACKGROUND
         In or around February 2010, plaintiff defaulted on a residential home loan.
         On February 19, 2010, a notice of default was recorded.
         On May 20, 2012, a notice of trustee‟s sale in connection with the deed of trust
was recorded.
         On June 9, 2010, plaintiff filed a complaint against various parties, including
defendant.

         1
             All further statutory references are to the Code of Civil Procedure.


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       On November 29, 2010, defendant filed a demurrer as to the three claims raised
against it in the complaint.
       Rather than opposing the demurrer, plaintiff elected to file his FAC on February 1,
2011. The FAC contains a single cause of action against defendant for wrongful
foreclosure.
       On March 2, 2011, defendant filed a demurrer to the FAC. The demurrer was
originally scheduled to be heard on April 27, 2011.
       The trial court continued the hearing on the demurrer to August 17, 2011 and then
to August 24, 2011. Plaintiff was provided notice of both of those continuances but
failed to file an opposition to defendant‟s demurrer.
       On August 24, 2011, the demurrer came on for hearing before the trial court. Both
counsel for plaintiff and for defendant were present at the hearing. The court sustained
the demurrer without leave to amend.
       On September 6, 2011, the court‟s order sustaining defendant‟s demurrer without
leave to amend was entered.
       On September 15, 2011, the trial court issued its judgment of dismissal based on
the demurrer.
       On September 28, 2011, plaintiff filed a motion to set aside the dismissal on the
grounds of attorney fault under section 473. Plaintiff‟s counsel attached an affidavit
admitting that the failure to timely submit an opposition was due to his own neglect.
       On November 30, 2011, the trial court denied the motion to set aside. This appeal
followed.
                                       DISCUSSION
       Plaintiff contends he was entitled to mandatory relief from the order sustaining the
demurrer without leave to amend (and the resulting dismissal), based on counsel‟s




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affidavit of fault, and therefore the trial court erred in denying his motion under
section 473, subdivision (b).2 The argument fails.
       The mandatory relief provision of section 473, subdivision (b), based on an
attorney‟s affidavit of fault, requires the court, if certain prerequisites are met, to vacate a
“default,” a “default judgment,” or a “dismissal.” (English v. IKON Business Solutions,
Inc. (2001) 94 Cal.App.4th 130, 143 (English).) In this context, the word “dismissal” is
construed as having a limited meaning, similar to the term “default judgment.” (Id. at
p. 145.) In adding the word “dismissal” to the mandatory provision of section 473,
subdivision (b),3 “the Legislature „intended to reach only those dismissals which occur
through failure to oppose a dismissal motion—the only dismissals which are
procedurally equivalent to a default.‟ [Citation.]” (English, at p. 145, italics added.)
       Various decisions have “construed the word „dismissal‟ in the mandatory
provision of section 473(b) as having a limited meaning, to prevent that provision „from
being used indiscriminately by plaintiffs‟ attorneys as a „perfect escape hatch‟ [citation]
to undo dismissals of civil cases.‟ [Citation.] Thus, [courts] have held that the
mandatory provision does not apply to: (1) a dismissal following the sustaining of a
demurrer without leave to amend on the ground the statute of limitations had run
[citation]; (2) a voluntary dismissal pursuant to a settlement agreement [citation]; and
(3) a mandatory dismissal for failure to serve a complaint within three years [citation].”
(English, supra, 94 Cal.App.4th at pp. 145–146.)
       In the instant case, plaintiff relied on counsel‟s affidavit of fault to excuse his
failure to oppose defendant‟s demurrer to the FAC. Because the nature of said
proceeding was a demurrer, not a motion for involuntary dismissal, the proceeding was


       2
         We give de novo review to applications of this provision. (Leader v. Health Industries
of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
       3
          In 1992, the Legislature amended section 473 by inserting the word “dismissal” into
the mandatory provision of the statute to give plaintiffs some of the mandatory relief that had
been available to defendants when a default judgment has been entered against them. (Stats.
1992, ch. 876, § 4, pp. 4071–4072; see Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th
1809, 1819–1820 [discussing legislative history of 1992 amendment].)


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not the “ „functional equivalent‟ ” of a default. (English, supra, 94 Cal.App.4th at
p. 145.) We note plaintiff took many substantive steps in this litigation, including the
filing of an amended complaint (in response to a prior demurrer), and appearing at the
hearing for the demurrer at issue. At this hearing, the trial court noted that plaintiff had
failed to file and opposition before it sustained the demurrer without leave to amend.
Counsel thus had the opportunity to argue at the hearing. Nor did he make any request
for permission to file a belated opposition. Thus, it cannot be said that plaintiff was
denied his day in court.4 Accordingly, the mandatory relief provision of section 473,
subdivision (b), has no application here.
                                          DISPOSITION
The order is affirmed.



                                                     _________________________
                                                     Dondero, Acting P. J.


We concur:


_________________________
Banke, J.


_________________________
Sepulveda, J.



       4
          Our Supreme Court has adopted the “lose their day in court” rationale for the
mandatory provision of section 473, subdivision (b). In Zamora v. Clayborn Contracting Group,
Inc. (2002) 28 Cal.4th 249, 257, that court held: “The purpose of this provision „was to alleviate
the hardship on parties who lose their day in court due solely to an inexcusable failure to act on
the part of their attorneys.‟ [Citation.]”
       
          Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


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