Defendant’s demurrer to the complaint was sustained without leave to amend when no opposition was filed. Nearly six months after entry of a judgment of dismissal, plaintiff moved for relief under the mandatory attorney-fault portion of CCP 473(b), supported by the plaintiff’s attorney’s declaration that he tried to file an amended complaint, responding to the demurrer’s arguments, but, unaware that CCP 472 had been amended to require that an amended complaint be filed within the time provided for filing opposition to the demurrer, he waited until shortly before the demurrer hearing, and then the clerk refused to file the pleading. This opinion holds that the trial court erred in not granting the motion to vacate. A dismissal on demurrer, at least when based on the plaintiff’s non-opposition rather than on the merits of the alleged claims, is a “dismissal” within the meaning of the attorney fault portion of CCP 473(b). Here, the attorney admitted fault, so relief from the judgment was mandated.
California Court of Appeal, First District, Division 5 (Simons, J.); October 17, 2018; 28 Cal. App. 5th 298