Newsletter 2019-03-18T15:16:39+00:00

Newsletter – March 2019

When an attorney gives erroneous advice that leads to a party defaulting or dismissing a lawsuit, the court can revive the lawsuit under Code of Civil Procedure Section 473. In a recent case, however, the California Court of Appeal refused to revive a lawsuit after a plaintiff voluntarily dismissed it based on the incorrect advice of an attorney who did not represent her in the suit. (Jackson v. Kaiser Foundation Hospitals, Inc., No. A150833 (Ct. App. Feb. 8, 2019).)

Facts of the Jackson v. Kaiser Case

Merilyn Jackson, who was unrepresented by a lawyer at the time, filed a discrimination lawsuit against Kaiser Foundation Hospitals, Inc. (“Kaiser”). After encountering difficulties with her pleadings in the early stages of the lawsuit, she began looking for a lawyer. Merilyn retained Martin Horowitz to represent her. He advised her that she could dismiss her lawsuit without prejudice and refile it later that year. As a result, Merilyn filed a  dismissal of  her lawsuit.

A few months later, Martin contacted Merilyn and informed her that he had been mistaken about having more time to file a new lawsuit. In fact, the deadline to file had expired the same day that she filed her original complaint. Attempting to fix the mistake, Martin and his firm agreed to represent Merilyn on a limited-scope basis to seek relief from the court for the previous dismissal.

On Merilyn’s behalf, Martin and his firm moved to vacate the dismissal pursuant to Code Civ. Proc., § 473, subd. (b). This law requires the court to vacate a default or dismissal of a lawsuit that was entered against a party because of an attorney’s mistake, inadvertence, surprise, or neglect in handling the client’s case. The trial court denied Merilyn’s motion, stating that an attorney’s incorrect advice could not serve as the basis for vacating the dismissal because Martin and his firm did not represent Merilyn in the lawsuit at the time he advised her to dismiss it. The trial court also explained that Code Civ. Proc., § 473, subd. (b)’s requirement for vacating a dismissal did not apply to Merilyn’s voluntary dismissal of her action without prejudice. Merilyn, with Martin’s help, appealed the trial court’s ruling.

The Court of Appeal Rejected Merilyn’s Attempt to Revive Her Lawsuit?

The Court of Appeal affirmed the trial court’s judgment in favor of Kaiser. First, the court decided that Merilyn could legally appeal the trial court’s order. Second, the court reasoned that Code Civ. Proc., § 473, subd. (b) was intended to provide relief only to plaintiffs who dismiss lawsuits in a manner similar to defaulting in a lawsuit (failing to respond or take required actions). Here, Marilyn voluntarily dismissed her lawsuit – even assuming that she made that decision because her lawyer gave her erroneous advice. The voluntary dismissal was not similar to defaulting in a lawsuit, so the court did not have to revive Merilyn’s suit.

The Takeaway

While California law provides relief to to revive lawsuits dismissed because of default or dismissals similar to defaults, voluntary dismissal by an unrepresented plaintiff does not mandate revival – even if a lawyer gives that plaintiff mistaken advice about the dismissal. For Merilyn Jackson, this complicated procedural rule combined with her reliance on Martin Horowitz’s advice was fatal for her lawsuit.  Her recourse for Horowitz’s errors will be in a malpractice action against Horowitz.