Filed 4/13/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION FIVE


THE URBAN WILDLANDS GROUP,                B271350
INC.,
                                          (Los Angeles County
       Plaintiff and Respondent,          Super. Ct. No. BS150983)

       v.

CITY OF LOS ANGELES et al.,

       Defendants and Appellants.



      APPEAL from an order of the Superior Court of Los
Angeles County, Joanne B. O’Donnell, Judge. Reversed with
directions.
      Michael N. Feuer, City Attorney, Timothy McWilliams,
Assistant City Attorney and Siegmund Shyu, Deputy City
Attorney, for Defendants and Appellants.
      Law Offices of Babak Naficy and Babak Naficy for Plaintiff
and Respondent.
                       I. INTRODUCTION

       Defendant, City of Los Angeles, Bureau of Street Lighting,
appeals from an order vacating a judgment pursuant to Code of
Civil Procedure1 section 473, subdivision (b). Plaintiff, The
Urban Wildlands Group, Inc., filed a petition for writ of mandate
and complaint for declaratory and injunctive relief. The mandate
petition and complaint allege a single cause of action challenging
defendant’s finding that a project was exempt from formal
environmental review under the California Environmental
Quality Act. (Pub. Resources Code, § 21084, subd. (a); Cal. Code
Regs., tit. 14, § 15061, subd. (b)(3).) Both parties briefed the
merits. Plaintiff stipulated that it would prepare and lodge the
administrative record. Defendant also submitted excerpts from
the administrative record. However, plaintiff never lodged the
administrative record. The trial court found in defendant’s favor
and entered judgment. Plaintiff then filed a motion under section
473, subdivision (b) asserting both discretionary and mandatory
relief should be granted. Plaintiff relied on its attorney’s sworn
affidavit in which he admitted to his neglect in failing to lodge
the administrative record. The trial court denied discretionary
relief. However, the trial court granted mandatory relief under
section 473, subdivision (b).
       Defendant contends the trial court erred by granting the
mandatory relief request under section 473, subdivision (b).
Defendant argues the section 473, subdivision (b) mandatory
relief provision only applies to a default, a default judgment, or a
dismissal. We agree. The judgment from which plaintiff seeks

      Further statutory references are to the Code of Civil
      1

Procedure.




                                 2
relief is not a default, default judgment, or dismissal. Thus, the
section 473, subdivision (b) mandatory relief provisions do not
apply here. We reverse the order setting aside the judgment.

                       II. BACKGROUND

               A. Mandate Petition and Complaint

       Plaintiff filed its mandate petition and complaint on
September 5, 2014. Plaintiff alleges defendant improperly found
a project approving the use of light emitting diode replacement
lights was exempt from further environmental review.
Defendant certified the administrative record. Pursuant to the
parties’ agreement, the trial court ordered plaintiff to lodge the
administrative record by May 28, 2015.
       Plaintiff filed both an opening and a reply brief. Defendant
filed an opposition brief. Defendant submitted excerpts from the
administrative record. However, plaintiff did not lodge the
administrative record.
       On July 8, 2015, the trial court held a hearing on the single
cause of action in the mandate petition and complaint. Plaintiff’s
counsel moved to continue the hearing. The trial court denied
the continuance motion. The trial court adopted its tentative
ruling and denied plaintiff’s petition and complaint. The trial
court ruled plaintiff could not support its arguments because it
failed to lodge the administrative record. Judgment was entered
accordingly on July 21, 2015.




                                 3
     B. Motion for Relief Under Section 473, Subdivision (b)

       On August 26, 2015, plaintiff moved to vacate the judgment
under section 473, subdivision (b). Plaintiff asserted relief should
be granted under both the discretionary and mandatory relief
provisions. As to the mandatory relief provisions, plaintiff
asserted the judgment was the functional equivalent of a
dismissal. Mandatory relief is available when an attorney
submits an affidavit attesting to his or her mistake, inadvertence,
surprise, or neglect resulting in a default or dismissal. (§ 473,
subd. (b).) Plaintiff argued that because there was no
administrative record, the trial court could not reach the merits
of the petition and complaint. As to the discretionary relief
theory, plaintiff contended its attorney’s mistake or inadvertence
was excusable.
       Plaintiff submitted its attorney’s declaration. Babak Naficy
declared that in November 2014 his long-term legal assistant,
Miranda Hyldahl, had left. He hired Barbara Heki as his new
assistant. It was his practice to lodge the administrative record
as soon as it was certified. Mr. Naficy told Ms. Heki to lodge the
administrative record with the trial court. Ms. Heki wrote the
task down and assured Mr. Naficy that it would be done. Mr.
Naficy, owing to his hectic workload in December and January,
did not check to see if Ms. Heki actually lodged the
administrative record. It did not occur to Mr. Naficy to check
because he assumed it had been done.




                                 4
       Ms. Heki also submitted a supporting declaration. She
declared Mr. Naficy had directed her to lodge the administrative
record with the trial court after receiving certification of the
record. Mr. Naficy placed defendant’s notice of certification of the
administrative record in the case file. However, Ms. Heki
assumed the certification of the administrative record meant it
had been lodged with the trial court.
       Defendant argued section 473, subdivision (b) relief was
unavailable because plaintiff already received its opportunity for
a trial on the merits. Defendant further contended that Mr.
Naficy’s mistake was not excusable for purposes of the
discretionary relief provisions of section 473. Defendant noted
Mr. Naficy had failed to calendar properly the record lodging
deadline. Defendant also argued mandatory relief was
unavailable because the judgment in this case was not a default,
default judgment, or dismissal.
       On February 3, 2016, the trial court granted plaintiff’s
motion under the mandatory relief provisions of section 473,
subdivision (b). The trial court ruled Mr. Naficy’s mistake
deprived plaintiff of its day in court. The trial court further
explained, “[T]he Court only ruled on the merits of the petition
because it was under the mistaken impression that the
incomplete administrative record that had been lodged -- and on
which the Court relied in its review of the petition -- had been
lodged by [plaintiff]. In fact, it was lodged by [defendant]. As a
result, the Court’s ruling on the merits of the petition was a
nullity. [Plaintiff] is entitled to its day in court based on the
actual record.” The trial court denied plaintiff’s motion for
discretionary relief. The trial court ruled Mr. Naficy’s conduct
did not rise to the level of excusable neglect.




                                 5
                        III. DISCUSSION

                      A. Standard of Review

       Section 473, subdivision (b), concerning mandatory relief,
provides in pertinent part, “Notwithstanding any other
requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry
of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect, vacate any . . . (2) resulting
default judgment or dismissal entered against his or her client. . .
.” (English v. IKON Business Solutions, Inc. (2001) 94
Cal.App.4th 130, 147 (English); In re Marriage of Hock &
Gordon-Hock (2000) 80 Cal.App.4th 1438, 1442 (Hock); Avila v.
Chua (1997) 57 Cal.App.4th 860, 866 (Avila).) Defendant does
not dispute the accuracy of Mr. Naficy’s affidavit. The dispute
lies as to the interpretation of “default,” “default judgment,” and
“dismissal” under section 473, subdivision (b) as applied to the
judgment at issue here. We review statutory interpretation
issues de novo. (People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 432; In re Clarissa H. (2003) 105
Cal.App.4th 120, 125.)




                                 6
 B. Default, Default Judgment, or Dismissal Under Section 473,
                        Subdivision (b)

       Defendant asserts the judgment at issue here is not a
default, default judgment, or dismissal within the meaning of
section 473, subdivision (b). There are two lines of cases
concerning the interpretation of “dismissal” and “default
judgment” in section 473, subdivision (b). The first line of cases
holds that “dismissal” and “default judgment” mean only that,
and should not be expanded to include other judgments. (See,
e.g., Huh v. Wang (2007) 158 Cal.App.4th 1406, 1418 (Huh);
English, supra, 94 Cal.App.4th at p. 138.) The second line of
cases offers a broader definition and applies the mandatory relief
provisions to judgments that are the procedural equivalents of
defaults, default judgments, or dismissals. (See, e.g., Hock,
supra, 80 Cal.App.4th at pp. 1444-1445; Avila, supra, 57
Cal.App.4th at pp. 867-868.) Defendant asserts the second line of
decisions were wrongly decided.
       The instructive decision for the first line of cases is English.
In English, the plaintiff filed an employment discrimination suit
against the defendant, her former employer. (English, supra, 94
Cal.App.4th at p. 133.) The defendant moved for summary
judgment. (Ibid.) The plaintiff did not submit an opposition with
any evidence. (Ibid.) Rather, the plaintiff asserted a continuance
should be granted under section 437c, subdivision (h). (Id. at pp.
133-134.) The trial court denied the continuance motion and
subsequently granted the summary judgment motion. (Id. at p.
134.) The plaintiff then filed a section 473, subdivision (b) motion
under a mandatory relief theory. (Ibid.) The plaintiff’s attorney
declared he erred by failing to submit evidence in opposition




                                  7
rather than solely arguing for a continuance. (Ibid.) The trial
court denied the plaintiff’s motion for relief from the judgment.
(Ibid.)
       The Court of Appeal affirmed the denial of the plaintiff’s
motion for relief from the judgment. (English, supra, 94
Cal.App.4th at p. 133.) The Court of Appeal examined the
legislative history of the mandatory relief provision in section
473, subdivision (b). (Id. at pp. 138-142.) The Court of Appeal
concluded regarding dismissals: “[W]e construe the word
‘dismissal’ as having a limited meaning similar to the term
‘default judgment.’ This approach is supported by the history of
the mandatory provision, set out above. As Justice Epstein
explained in his dissenting opinion in Yeap [v. Leake (1997) 60
Cal.App.4th 591]: ‘The purpose of the [1992] amendment was to
give plaintiffs the functional equivalent of the “default” provision
for defendants . . . .’ (Yeap v. Leake, supra, 60 Cal.App.4th at p.
604 (dis. opn. of Epstein, J.).)” (English, supra, 94 Cal.App.4th at
p. 145.) The Court of Appeal found a summary judgment is not a
default, default judgment, or dismissal. (Id. at p. 143.)
       Numerous Courts of Appeal have followed English’s line of
reasoning. (See, e.g., Las Vegas Land and Development Co., LLC
v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1091
[mandatory relief under § 473, subd. (b) does not apply to
summary judgments]; Henderson v. Pacific Gas & Elec. Co.
(2010) 187 Cal.App.4th 215, 228-229 [same]; Huh, supra, 158
Cal.App.4th at p. 1418 [same]; Hossain v. Hossain (2007) 157
Cal.App.4th 454, 458 [mandatory relief not available for untimely
filed opposition to motion to enforce settlement agreement and
late motion to enforce because order was not a default, default
judgment, or dismissal]; Vandermoon v. Sanwong (2006) 142




                                 8
Cal.App.4th 315, 321 [mandatory relief does not apply to
judgment entered after uncontested trial in the defendant’s
absence because judgment was not default, default judgment, or
dismissal]; Prieto v. Loyola Marymount (2005) 132 Cal.App.4th
290, 295-297 [disagreeing with Avila and agreeing with English];
Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483-485 [following
English and denying mandatory relief when an attorney fails to
properly designate an expert witness which leads to a dismissal
after a hearing at which plaintiff’s counsel argues].)
       The second much less numerous line of cases, including two
from this division, use a more expansive definition of the term
default judgment. The first case to apply this expansive
definition of the term default or default judgment was Avila. In
Avila, we held that judgments that are “directly analogous to a
default judgment” are also within the scope of the mandatory
relief provisions under section 473, subdivision (b). (Avila, supra,
57 Cal.App.4th at p. 868.) Avila extended the scope of the
mandatory relief provisions to a scenario where the plaintiff’s
attorney failed to timely file an opposition to the defendant’s
summary judgment motion. (Id. at pp. 867-868.) Plaintiff asserts
that Avila and its very small progeny are the correct line of cases.
(See Hock, supra, 80 Cal.App.4th at p. 1443 [applying mandatory
relief under § 473, subd. (b) to judgment on reserved issues in
dissolution proceeding when the appellant failed to appear
because of attorney’s mistake]; Yeap v. Leake, supra, 60
Cal.App.4th at pp. 600-601 [failing to appear for a judicial
arbitration is akin to a default for purposes of the § 473, subd. (b)
mandatory relief provisions].)




                                 9
        Having the benefit of reviewing English and its progeny,
we disapprove of our prior opinions in Avila and Hock. As
summarized succinctly by our colleague, now Retired Associate
Justice Richard J. McAdams in Huh, supra, 158 Cal.App.4th at
page 1417: “We agree with the cogent analysis in English, which
is faithful to legislative intent and consistent with established
principles of statutory construction. As the English court said:
‘It is not an appellate court’s task, nor, indeed, its prerogative,
when interpreting a statute, to extend the scope of the statute to
encompass situations “analogous” to those the statute explicitly
addresses. Rather, an appellate court’s task is simply to
determine what the Legislature meant by the words it used,
relying first and foremost on the words themselves.’ (English,
supra, 94 Cal.App.4th at p. 144.) Where the statutory language
is unambiguous, its plain meaning controls. (Id. at p. 143; see
Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal.4th 911, 919.) Here, the statutory language is
unequivocal. ‘As expressly worded, section 473(b) applies only to
relief sought in response to defaults, default judgments or
dismissals.’ (Vandermoon v. Sanwong, supra, 142 Cal.App.4th at
p. 320, italics added.) Summary judgments are neither defaults,
nor default judgments, nor dismissals. (English, at p. 133.) The
explicit statutory language of section 473(b) thus ‘provides no
basis for extending the mandatory provision’ to such judgments.
(Prieto v. Loyola Marymount University, supra, 132 Cal.App.4th
at p. 297.) In the words of Justice Epstein, ‘to read the
mandatory provision of . . . section 473 to apply whenever a party
loses his or her day in court due to attorney error goes far beyond
anything the Legislature has done.’ (Yeap, supra, 60 Cal.App.4th
at p. 605 (dis. opn. of Epstein, J.).)” We agree with Associate




                                10
Justice McAdams’ cogent analysis and disapprove of our
mandatory relief discussions in Avila and Hock.
       We briefly address three remaining issues. First, the trial
court cited Zamora for its conclusion that the mandatory relief
provisions apply when a party loses its day in court. This is an
incomplete reading of our Supreme Court’s Zamora opinion. In
Zamora, our Supreme Court applied the discretionary relief
provisions of section 473, subdivision (b). (Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).)
But our Supreme Court also briefly discussed the mandatory
relief provisions of section 473, subdivision (b).
       In Zamora, while discussing the section 473, subdivision (b)
mandatory relief provisions, our Supreme Court quoted in brief
from Huens v. Tatum (1997) 52 Cal.App.4th 259, 264 (Huens).
Our Supreme Court stated: “The purpose of [the mandatory
relief] 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.’ (Huens, supra, 52 Cal.App.4th at p.
264.)” (Zamora, supra, 28 Cal.4th at p. 257.) This quotation from
Huens arises in the following context: “In relevant part, the [sic]
section 473 provides that, upon the filing of an attorney affidavit
meeting its requirements, ‘the court shall . . . vacate any . . .
dismissal entered against his or her client,’ unless the court finds
the dismissal was not in fact caused by the attorney. (Italics
added.) The statute’s use of the word ‘against’ limits the class of
targeted dismissals and makes clear that only involuntary
dismissals are affected. [¶] This conclusion is consistent with
the narrow view of the Legislature’s intent which appellate
courts have taken, i.e., that the section’s purpose was simply ‘to
put plaintiffs whose cases are dismissed for failing to respond to a




                                11
dismissal motion on the same footing with defendants who are
defaulted for failing to respond to an action.’ [Citations.] The
purpose of the statute 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. There is no evidence the
amendment was intended to be a catch-all remedy for every case
of poor judgment on the part of counsel which results in
dismissal.” (Huens, supra, 52 Cal.App.4th at p. 264.) In other
words, the litigants who lose their day in court are those parties
that fail to respond to a dismissal motion because of an attorney’s
error. That is not the case here.
        Here, there was a trial of the merits of the mandate
petition and complaint and thus the section 473, subdivision (b)
mandatory relief provisions are inapplicable. Plaintiff failed to
present sufficient evidence to meet its burden of proof—it never
lodged the administrative record. As the Court of Appeal in
English held regarding the summary judgment at issue therein:
“Given the limited meaning of the word ‘dismissal’ as used in the
mandatory provision of section 473(b), a summary judgment in
favor of a defendant is not a ‘dismissal.’ A summary judgment is
not ‘the removal . . . by a court’ ‘of an application for judicial
relief.’ (Yeap v. Leake, supra, 60 Cal.App.4th at p. 603 (dis. opn.
of Epstein, J.).) Rather, it is a judicial determination that under
the undisputed facts before the court, the moving party is entitled
to prevail in the action as a matter of law. [Citation.] . . . Thus, a
summary judgment in favor of defendant does not constitute a
removal of the plaintiff’s application for judicial relief, but rather
an adjudication of that application based on the undisputed facts
before the court.” (English, supra, 94 Cal.App.4th at pp. 148-
149.)




                                 12
       Plaintiff here is in a similar position to the one in English.
The judgment against plaintiff here was not “a removal of
plaintiff’s application for relief” but instead resulted from a trial
on the merits. Plaintiff failed to present sufficient evidence and
thus did not meet its burden of proof. The judgment at issue here
is not a default, default judgment, or dismissal. The trial court
could not therefore grant mandatory relief under section 473,
subdivision (b).
       Second, we also note the trial court referred to its judgment
as a nullity based on its misunderstanding as to whether plaintiff
had submitted the excerpts from the administrative record. This
has no bearing on the issues before us. As discussed above, the
judgment here is not within the scope of mandatory relief
available under section 473, subdivision (b).
       Finally, in the trial court’s defense, it was entitled to rely
on our prior opinions in Avila and Hock as legally controlling
authority. When there is a division in Court of Appeal opinions,
a trial court chooses which line of authority to follow. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456;
Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th
96, 101, fn. 7.) However, upon reconsideration, we conclude our
analysis in Avila and Hock broadly construing the section 473,
subdivision (b) default, default judgment, or dismissal language
was incorrect.




                                 13
                       IV. DISPOSITION

       The February 3, 2016 order setting aside the July 21, 2015
judgment is reversed. Upon remittitur issuance, the July 21,
2015 judgment is to be reinstated. Defendant, City of Los
Angeles, Bureau of Street Lighting, may recover its appellate
costs from plaintiff, The Urban Wildlands Group, Inc.
                         CERTIFIED FOR PUBLICATION




                        TURNER, P. J.



I concur:



      KIN, J. 




      
       Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                               14
The Urban Wildlands Group, Inc. v. City of Los Angeles, Bureau
of Street Lighting
B271350


BAKER, J., Concurring



       I agree the majority opinion reaches the correct result on
the facts of this case. But I find it unnecessary to join, and do not
join, in the effort to wholesale “disapprove” of our prior decisions
in Avila v. Chua (1997) 57 Cal.App.4th 860 and In re Marriage of
Hock & Gordon-Hock (2000) 80 Cal.App.4th. 1438. That is a task
best left to our Supreme Court—if it were so inclined. (Cole v.
Rush (1955) 45 Cal.2d 345, 350-351, overruled on other grounds
in Vesely v. Sager (1971) 5 Cal.3d 153; People v. Bolden (1990)
217 Cal.App.3d 1591, 1598; see also Garza v. Asbestos Corp., Ltd.
(2008) 161 Cal.App.4th 651, 659, fn. 5.)




                            BAKER, J.
