Di Benedetto v. Lais
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Appellant,
v.
J. LAIS et al.,
Defendants and
Respondents.
F064372
(Super.
Ct. No. 08C0168)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
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-
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,
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.†(
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.
name="_ftnref3" title="">[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 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
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.â€
title="">[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
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.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Detjen, J. and Peña, J.
name="_ftn2" title="">[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.
