Boydstun v. Abbott

Boydstun v. Abbott

Filed 4/21/06 Boydstun v. Abbott CA5


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.




Plaintiffs and Appellants,



Defendants and Respondents.


(Super. Ct. No. 270043)


APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge.

The Farrace Law Firm and Robert F. Farrace for Plaintiffs and Appellants.

McCormick, Barstow, Sheppard, Wayte & Carruth, Lawrence E. Wayte, Jerry D. Casheros and Anil Pai for Defendant and Respondent Michael Abbott.

Bishop, Barry, Howe, Haney & Ryder and Carol L. Healey for Defendants and Respondents Michael Rein and Rein & Rein.


Appellants Bobby Ray Boydstun, Sr., Hazel Boydstun, and Bobby Ray’s Enterprises, Inc. (collectively appellants) seek relief from a judgment of dismissal. We will affirm the judgment.


Appellants filed suit against respondents on June 12, 2000. An amended complaint was filed on April 26, 2002. A case management conference was scheduled for August 30, 2002. When no one appeared, the trial court set the matter for a dismissal hearing.

When no one appeared at the October 25, 2002, dismissal hearing, a minute order dismissing the action without prejudice was entered on the docket. No notice was given to the parties of the entry of the minute order and no judgment was entered.

In November 2002, respondent Michael Abbott, individually and doing business as Law Offices of Michael Abbott (collectively Abbott) renoticed the depositions of appellants, setting them for December 2002. By letter dated April 1, 2003, respondents Michael Rein and Rein & Rein (collectively Rein) sought to have appellants voluntarily dismiss the action as against them. On April 11, 2003, appellants responded with a settlement offer to Rein. In May 2003, respondent Abbott served a notice of taking deposition and a request for production of documents. Approximately one week later, respondent Abbott served a notice of cancellation of the deposition and document request.

On November 9, 2004, appellants filed their motion to set aside the dismissal based upon the provisions of Code of Civil Procedure section 473, subdivision (b).[1] The motion was accompanied by the declaration of Robert F. Farrace, appellants’ counsel. In his declaration, Farrace set forth the numerous personal and professional problems he had suffered between January 2000 and September 2004. Farrace claimed the dismissal of the case occurred because of his mistake, inadvertence, or neglect and accepted full responsibility for events that led to the minute order dismissing the matter. Respondents Abbott and Rein opposed the motion to set aside the dismissal.

In its order on the motion to set aside dismissal, the trial court found that the dismissal entered on the docket did not constitute a judgment of dismissal within the meaning of section 581, subdivision (d). The trial court further found that taking into consideration the personal tragedy suffered by Farrace and his lack of notice of the clerk’s dismissal, Farrace still had failed diligently to prosecute the action.

By order dated December 17, 2004, the motion was denied. On January 20, 2005, a judgment of dismissal was entered. Appellants appeal from the judgment of dismissal.


Appellants contend that section 473, subdivision (b) provides for mandatory relief from dismissal upon an attorney’s affidavit of fault, if the request for relief is filed within six months of entry of judgment. Appellants’ motion to set aside the dismissal of October 25, 2002, specifically requested mandatory relief pursuant to section 473, subdivision (b). They maintain that their motion was timely because it was filed before the judgment of dismissal on January 20, 2005.

Respondent Rein argues that appellants’ motion to set aside was not timely because it was filed more than six months after the entry on the docket of the dismissal. Respondent Abbott maintains the trial court did not base its ruling on section 473 but instead exercised its inherent authority to dismiss; therefore, an analysis of section 473 is irrelevant to the issues on appeal.

I. Section 473, Subdivision (b) Does Not Apply

An appellate court reviews the judgment, not the reasoning of the trial court. A decision that is correct under applicable law will not be disturbed merely because it has been rendered for an incorrect reason. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.) Therefore, regardless of whether the trial court based its decision on section 473, subdivision (b), we address that code section in order to determine if applicable law entitled appellants to relief.

Section 473, subdivision (b) provides in relevant 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 (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.”

Although section 473, subdivision (b) on its face affords relief from “dismissal” caused by attorney neglect, the statute has been judicially construed to prevent it from being used in all instances to undo dismissals of civil cases. (Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.) Several appellate courts have held that section 473, subdivision (b) does not apply to discretionary dismissals.

In Graham v. Beers (1994) 30 Cal.App.4th 1656, Division Six of the Second District specifically addressed the application of section 473, subdivision (b) to discretionary dismissals for failure to prosecute brought on the trial court’s own motion. (Graham, at p. 1658.) In construing section 473, subdivision (b) and section 583.410, the appellate court concluded, “Although the seemingly contradictory language in section 473 and section 583.410 is troubling, the Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissal statutes.” (Graham, at p. 1661.) The appellate court further concluded that if the Legislature had intended to abrogate a trial court’s discretion under section 583.410, it would have specifically so stated. (Graham, at p. 1661.)

Division Three of the Fourth District, in dicta, discussed the same issue in Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557. The Tustin court stated:

“A plaintiff who failed to convince the trial court that the prosecution of the case was diligent would have the case dismissed. That same plaintiff could then jump back into court on a section 473 motion, accompanied by an attorney’s affidavit of negligence, and have the case reinstated based on the same facts offered, but discarded, in the hearing on the request to dismiss. The Legislature cannot have intended such an absurd result.” (Id. at p. 1566.)

In Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, the Third District Court of Appeal relied upon the Tustin and Graham cases in concluding “when the Legislature incorporated dismissals into section 473 it 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. [Citations.]” (Peltier, at p. 1817.) Cases which result in a judgment of dismissal after a hearing on a motion do not fall within section 473, subdivision (b). (Peltier, at pp. 1824-1825.)

Here, the clerk’s dismissal was entered without a hearing on the merits because none of the parties to the action appeared. If the clerk’s dismissal had resulted in a judgment of dismissal, it follows that, upon timely filing of a section 473, subdivision (b) motion, appellants would have been entitled to relief. (Peltier v. McCloud River R.R. Co., supra, 34 Cal.App.4th at p. 1817.)

The trial court, however, did not issue a judgment of dismissal based simply upon the entry of the clerk’s dismissal. Instead, a hearing was conducted, albeit on appellants’ motion for relief from the clerk’s dismissal. The trial court assessed the cause of delay in prosecuting the action and found that the length of the delay was unjustified and counsel had failed to exercise due diligence. There was a delay of more than two years between the date of the clerk’s dismissal and the filing of the motion. There was a delay of 18 months between the last activity in the case and the filing of the motion to set aside the dismissal. After a full hearing on the merits, the trial court exercised its equitable powers, or discretion, and entered a judgment of dismissal based upon delay in prosecution.

The facts of this case place it squarely within the parameters of those decisions holding that discretionary dismissals fall within an exception to section 473, subdivision (b). To conclude otherwise would lead to the “absurd result” referenced by Tustin. (Tustin Plaza Partnership v. Wehage, supra, 27 Cal.App.4th at p. 1566.)

II. No Abuse of Discretion

Having concluded that section 473, subdivision (b) does not apply in those situations where there has been a hearing on the merits and the trial court exercises its discretionary authority to dismiss for delay in prosecution before issuing a judgment of dismissal, we will examine whether the trial court abused its discretion in directing entry of a judgment of dismissal.

When reviewing a discretionary dismissal, an appellate court presumes the decision of the trial court is correct. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Appellants have the burden of showing that the trial court abused its discretion. (Ibid.) An appellate court will not substitute its opinion for that of the trial court unless there is a clear showing of an abuse of discretion. (Lopez v. State of California (1996) 49 Cal.App.4th 1292, 1295.)

If an action has not been brought to trial within two years of the date of filing, a trial court may dismiss an action for delay in prosecution. (§ 583.410, subd. (b); Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1361.)

Here, the action was filed initially in June 2000; the clerk’s dismissal was entered in October 2002. The motion to set aside the clerk’s dismissal was filed in November 2004. After a hearing, the trial court determined the delay in prosecution was not justified in its entirety and issued a judgment of dismissal in January 2005, four and one-half years after the action was initiated and at least 18 months after the last activity in the case.

An abuse of discretion is shown when the trial court has exceeded the bounds of reason. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698.) Appellants have failed to show that the trial court exceeded the bounds of reason when it entered a judgment of dismissal in a case that had been pending for over four years, was not ready for trial, and had lain dormant for approximately two years.


The judgment is affirmed. Costs are awarded to respondents.





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[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

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