1

Filed 11/21/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LINDA GEE,

Plaintiff and Respondent,

v.

GREYHOUND LINES, INC., et al.,

Defendants and Appellants.

C077077

(Super. Ct. 

No. 34201200128324CUPAGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Robert C. 

Hight, Judge. Affirmed.

Esther Pardo Holm for Defendants and Appellants.

Stuart Rowe Chandler for Plaintiff and Respondent.
2

Defendant Greyhound Lines, Inc. (Greyhound) appeals from the trial court’s order 

granting plaintiff Linda Gee’s motion to set aside dismissal pursuant to Code of Civil 

Procedure section 473, subdivision (b).1 On appeal, Greyhound argues that the trial court 

erred in granting relief under section 473, subdivision (b), contending that (1) the court 

lacked jurisdiction to set aside the dismissal under section 473, subdivision (b), because 

Gee failed to comply with the requirements of section 1008, and (2) Gee failed to provide 

a sufficient showing to justify relief under section 473, subdivision (b).

We conclude that section 473, subdivision (b), can provide relief when an action is 

dismissed due to plaintiff’s counsel’s mistake or inexcusable neglect related to the failure 

to pay change of venue fees. As this was plaintiff’s initial application for relief under 

section 473, subdivision (b), and not a request to reconsider a denial of relief under that 

section, there was no requirement that she file a motion for reconsideration under section 

1008. We further conclude that there was sufficient evidence to justify relief under 

section 473, subdivision (b).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint

On July 19, 2012, Gee filed a civil complaint in Sacramento County Superior 

Court for personal injuries against Greyhound, Estate of James Charles Jewett, Estate of 

Sylvia Garay, Olga Garay, and Does 1 through 30 (collectively, defendants), alleging 

injuries resulting from a motor vehicle accident on July 22, 2010, in which she was a 

passenger on a Greyhound bus involved in the accident. The bus was driven by Jewett.2 

 

1

 Undesignated statutory references are to the Code of Civil Procedure in effect at the 

time of the proceedings.

2

 Jewett was a driver or operator for Greyhound and is now deceased; however, the 

Estate of James Charles Jewett is a named defendant.
3

Gee alleged Jewett was “driving at an excessive rate of speed,” which caused the bus to 

collide with two other vehicles and then crash into a tree. The complaint stated causes of 

action for general negligence, intentional tort, and products liability. Gee alleged that she 

suffered emotional and physical injuries as a result of the accident. She alleged wage 

loss, hospital and medical expenses, and loss of earning capacity and also sought punitive 

damages.

Greyhound’s Motion to Change Venue

Greyhound filed a motion to change venue from Sacramento County Superior 

Court to Fresno County Superior Court, contending that Sacramento was not the proper 

venue and, additionally, the ends of justice would be promoted by changing venue to that 

county because the accident occurred in Fresno County and most of the defendants were 

domiciled in Fresno County.

3

The court granted Greyhound’s motion to change venue and ordered Gee to pay 

the transfer fees, but did not state the statutory basis for the fee. Greyhound sent notice to 

Gee requesting that the transfer fees be paid promptly, but Gee did not respond to the 

notice or pay the fees.

Greyhound’s Motion to Dismiss

Greyhound filed in Sacramento County Superior Court a motion to dismiss Gee’s 

complaint without prejudice pursuant to section 399, subdivision (a), because Gee failed 

to pay the transfer fees. Section 399, subdivision (a), provides that if the transfer fees are 

not paid within 30 days, the court may dismiss the action without prejudice. Gee did not 

oppose the motion or request to be heard at a hearing after the trial court’s tentative 

ruling, and the court granted Greyhound’s motion to dismiss the complaint without 

prejudice based on Gee’s failure to pay the transfer fees.

 

3

 Gee resides in Sacramento County. Jewett had resided in Sacramento County, but he 

died in the accident. The record does not disclose where his estate was administered. 

(See § 395.1; Jones v. McGinnis (1953) 121 Cal.App.2d 720.)
4

DISCUSSION

I. Jurisdiction to Vacate the Dismissal

A. Background and Greyhound’s Contentions

On April 4, 2014, Gee filed a motion pursuant to section 473, subdivision (b), to 

set aside the dismissal entered on February 11, 2014. The hearing was set for May 27, 

2014. Gee’s attorney, Allen Hassan, stated in the points and authorities in support of the 

motion that the mistake, inadvertence, surprise, or neglect was due to his error. Hassan’s 

declaration stated he “opted not to oppose” the change of venue motion because he felt 

the court would grant it since there were approximately 50 plaintiffs and the majority of 

them had filed their cases in Fresno County. He also stated, “It was my understanding of 

the law at that time after having reviewed [] section 399 that the moving party would be 

responsible for paying the cost of transferring this matter to Fresno County.”4

 

4

 Section 399, subdivision (a), provides that when transfer is sought on any ground 

specified in subdivision (b), (c), (d), or (e) of section 397, the costs and fees are paid by 

the party making the motion for the transfer. Greyhound did not mention transfer fees in 

its venue motion. Greyhound specifically cited as a ground for transfer, section 397, 

subdivision (c), which provides: “The court may, on motion, change the place of trial in 

the following cases: [¶] . . . [¶] When the convenience of witnesses and the ends of 

justice would be promoted by the change.” While Greyhound cited section 395, 

subdivision (a), which provides that venue is proper in “the county where the injury 

occurs . . . or the county where the defendants, or some of them reside at the 

commencement of the action,” it did not cite that provision as a specific ground for 

transfer. Nor did Greyhound cite section 397, subdivision (a), which provides that a 

court may transfer venue “[w]hen the court designated in the complaint is not the proper 

court.” Section 397, subdivision (a), is not included in the list of transfer grounds for 

which the moving party shall pay the transfer fees. Rather, section 399, subdivision (a),

provides, “[w]hen the transfer is sought solely, or is ordered, because the action or 

proceeding was commenced in a court other than that designated as proper by this title, 

those costs and fees . . . shall be paid by the plaintiff before the transfer is made.” 

Because Greyhound never mentioned transfer fees in its change of venue motion and 

never cited section 397, subdivision (a), as grounds for the transfer, Hassan was not put 

on notice that Gee might be responsible for the transfer fees when the motion was made.
5

Hassan further declared, “I then reviewed my files and realized that I had not 

received any correspondence from the Fresno County Superior notifying me of the 

September 8, 2014 trial date.” Hassan stated that “[he] checked the Sacramento[] County 

Superior Court file and notice[d] that this matter had been dismissed because I had failed 

to pay transfer fees.”

Gee argued that under section 473, subdivision (b), the court should vacate the 

order to dismiss without prejudice because Gee’s attorney, Hassan, mistakenly failed to 

pay the transfer fees as ordered by the trial court. Gee contended Hassan’s declaration 

met the requirements under section 473, subdivision (b), to demonstrate the attorney’s 

mistake, inadvertence, surprise, or neglect. Further, Gee argued that under section 399, 

subdivision (a), Hassan believed that Greyhound, as the moving party, was required to 

pay the transfer fees to Fresno Superior Court.

Greyhound filed an opposition to the motion to vacate dismissal of plaintiff’s 

complaint. Greyhound contended that Hassan’s neglect was inexcusable because he was 

adequately served with notice of the order to pay transfer fees and because Hassan failed 

to exercise reasonable diligence in prosecuting his case. Specifically, Greyhound argued 

that, “what is currently before the court is not a legitimate application for relief from any 

‘mistake, inadvertence, surprise or neglect.’ . . . Defendant submits that this attorney’s 

false assertion of ‘mistake’ compounded with the total absence of any diligence whatever 

to prosecute this case for well ‘over a year’ provide compelling bases for denying the 

pending application for relief . . . .”

The trial court issued its tentative ruling on May 21, 2014, granting Gee’s motion 

to set aside the dismissal.

After hearing oral argument, the trial court granted Gee’s motion to set aside the 

dismissal. In so ruling, the court wrote: “This is clearly a case of attorney fault. Since it 

resulted in dismissal of her case, plaintiff is entitled to relief under CCP 473(b). [¶] 

Greyhound’s opposition is based on the premise that the mistake was not excusable. A 
6

motion based on attorney neglect that results in the dismissal of a case does not require a 

showing that the mistake was excusable.”

On appeal, Greyhound argues the trial court abused its discretion in vacating the 

dismissal of Gee’s complaint under section 473, subdivision (b). Greyhound contends 

that under section 473, subdivision (b), Gee’s motion addressed the issue of failure to pay 

the transfer fees but did not address Gee’s failure to oppose Greyhound’s motion to 

dismiss. Greyhound contends that Gee should have moved for reconsideration of the 

dismissal pursuant to section 1008, subdivisions (a) and (e), rather than moving for relief 

under section 473, subdivision (b). Greyhound alleges that because Gee did not address 

the circumstances that led to the dismissal, Gee’s motion failed to comply with the 

requirements set forth in section 1008. Further, Greyhound argues the trial court abused 

its discretion by granting Gee’s motion to vacate because Gee’s motion fails to address 

the circumstances that led to dismissal.

Gee argues the trial court had jurisdiction to vacate the order dismissing the 

complaint without prejudice under section 473, subdivision (b). Gee contends section 

1008, subdivision (e), applies only to motions for reconsideration, and her motion to set 

aside the dismissal was not a motion for reconsideration within the meaning of the 

statute. Based on this, Gee contends the trial court did not abuse its discretion in granting 

the motion to dismiss under section 473, subdivision (b). Relief under section 473,

subdivision (b), is mandatory when an attorney is at fault. Finally, Gee contends that 

Hassan’s declaration addressed the issue of non-payment of the transfer fees.

B. Analysis

1. Standard of Review

Section 473, subdivision (b), contains provisions for both discretionary and 

mandatory relief. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, 

LLC (2015) 61 Cal.4th 830, 838-839 (Even Zohar); Benedict v. Danner Press (2001) 87 

Cal.App.4th 923, 927.)
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“[I]f the prerequisites for the application of the mandatory provision of section 

473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” 

(Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 (Leader).) 

Generally, the applicability of the mandatory provision is limited to those dismissals 

procedurally equivalent to defaults. (Id. at p. 618.) The mandatory provision has been 

held to afford relief from failure to oppose a motion to dismiss. (Ibid.; Graham v. Beers

(1994) 30 Cal.App.4th 1656, 1660-1661.) It also provides relief from a judgment of 

dismissal implementing terminating sanctions for a discovery abuse, because such 

dismissals are the procedural equivalent of a default. (Rodriguez v. Brill (2015) 234 

Cal.App.4th 715, 725.)

Here, as Greyhound notes, the dismissal had the effect of a default resulting in a

final judgment in that Gee’s entire complaint was dismissed and no action remained 

pending.5 For this reason, the trial court granted Gee’s motion based on the mandatory 

provision in section 473, subdivision (b), finding that the default was the result of the 

attorney’s mistake, inadvertence, surprise, or neglect.

The applicability of the mandatory relief provision does not turn on disputed facts 

and presents a pure question of law subject to de novo review. Accordingly, we agree 

with Greyhound and review the applicability of section 473, subdivision (b), relief de 

novo. (Leader, supra, 89 Cal.App.4th at p. 612.)

2. Required Showing for Relief under section 473, subdivision (b)

In pertinent part, section 473, subdivision (b), provides: “the court shall, 

whenever an application for relief is made no more than six months after entry of 

 

5

 During oral argument, Greyhound’s counsel argued that because section 473 is only 

applicable to dismissals equivalent to defaults that result in final judgments, the default 

judgment in Even Zohar is distinguishable from the dismissal of plaintiff’s case. This 

argument lacks merit. As Greyhound argued in its reply brief, the dismissal of plaintiff’s 

action had the effect of a “final adjudication of the rights of the parties in this action.”
8

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.” (Italics added.) Thus, this 

provision mandates relief on the basis of an attorney’s affidavit where default was caused 

by the attorney’s mistake, inadvertence, surprise, or neglect. (Even Zohar, supra, 61 

Cal.4th at pp. 838-839; Leader, supra, 89 Cal.App.4th at p. 612.) Relief is mandated on 

the basis of attorney affidavit “ ‘unless the court finds that the default or dismissal was 

not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ The 

statute clearly involves an assessment of credibility by the trial court. . . . [¶] Credibility 

is an issue for the fact finder. As we have repeatedly stated, we do not reweigh evidence 

or reassess the credibility of witnesses. [Citation.] . . . When, as here, ‘the evidence 

gives rise to conflicting reasonable inferences, one of which supports the findings of the 

trial court, the trial court’s finding is conclusive on appeal.’ ” (Johnson v. Pratt & 

Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623, fn. omitted (Johnson).)

3. Required Showing for Relief under section 1008

Section 1008 applies only to renewed motions after a motion has been ruled upon 

by the trial court. Section 1008, subdivision (a), provides: “When an application for an 

order has been made to a judge, or to a court, and refused in whole or in part, or granted, 

or granted conditionally, or on terms, any party affected by the order may, within 10 days 

after service upon the party of written notice of entry of the order and based upon new or 

different facts, circumstances, or law, make application to the same judge or court that 

made the order, to reconsider the matter and modify, amend, or revoke the prior order. 

The party making the application shall state by affidavit what application was made 

before, when and to what judge, what order or decisions were made, and what new or 
9

different facts, circumstances, or law are claimed to be shown.” (Italics added.) Section 

1008, subdivision (e), provides in pertinent part: “This section specifies the court’s 

jurisdiction with regard to applications for reconsideration of its orders and renewals of 

previous motions, and applies to all applications to reconsider any order of a judge or 

court, or for the renewal of a previous motion. . . . No application to reconsider any order 

or for the renewal of a previous motion may be considered by any judge or court unless 

made according to this section.”

“Courts have construed section 1008 to require a party filing an application for 

reconsideration or a renewed application to show diligence with a satisfactory 

explanation for not having presented the new or different information earlier.” (Even 

Zohar, supra, 61 Cal.4th at p. 839.)

4. The Application of sections 473 and 1008 to Gee’s Motion

Greyhound contends that “although [Gee’s] motion was styled as a motion for 

relief from ‘mistake, inadvertence, surprise, or excusable neglect,’ under section 473(b), 

rather than a motion for reconsideration, [Gee’s] motion was nonetheless in substance a 

request to revoke a prior order.” Greyhound contends Gee should have brought a section 

1008 motion to reconsider the court’s ruling on Greyhound’s motion to dismiss rather 

than a section 473 motion. We disagree.

The California Supreme Court recently clarified the applicability of and the 

potential interplay between sections 1008 and 473. (Even Zohar, supra, 61 Cal.4th at pp.

840-841.)6 “Section 1008 expressly applies to all renewed applications for orders the 

 

6

 In a petition for rehearing, Greyhound cites Government Code section 68081, 

contending that we should grant rehearing because it was not given an opportunity to 

brief Even Zohar and that this was a new issue not briefed by any party. We disagree. 

Even Zohar merely provided clarification of the same issue already fairly encompassed 

by the parties’ briefing. Government Code section 68081 does not give the parties a right 

to submit supplemental briefs when an appellate court relies upon authority that was not 

briefed by the parties: “The parties need only have been given an opportunity to brief the 
10

court has previously refused. Section 1008 by its terms ‘specifies the court’s jurisdiction

with regard to . . . renewals of previous motions, and applies to all applications . . . for 

the renewal of a previous motion, whether the order deciding the previous matter or 

motion is interim or final. No application . . . for the renewal of a previous motion may 

be considered by any judge or court unless made according to this section. [Citation.] In 

contrast, no language in section 473(b) purports to exempt applications for relief from 

default from the requirements of section 1008. In other words, section 1008 does not 

restrict initial applications for relief from default under section 473(b) in any way, nor 

does section 473(b) purport to authorize unlimited repetitions of the same motion. To 

interpret the two statutes in this way gives full effect to all provisions of both. Such an 

interpretation is strongly preferred, as we have explained.” (Even Zohar, at pp. 840-841,

italics added & some italics omitted.) Thus, once a motion under section 473, 

subdivision (b), is ruled upon, the party who does not prevail may make application for 

reconsideration, in which case section 1008 applies. However, given the Supreme 

Court’s observation that “section 1008 does not restrict initial applications for relief from 

default under section 473(b) in any way” (Even Zohar, at p. 841), Greyhound’s argument 

that Gee’s noncompliance with section 1008 deprived the court of jurisdiction to grant 

relief must be rejected.

Greyhound cites Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, as

modified on denial of rehearing on April 3, 1995 (Gilberd), for the proposition that 

“[s]ection 1008 governs reconsideration of court orders whether initiated by a party or the 

 

issue decided by the court, and the fact that a party does not address an issue, mode of 

analysis, or authority that is raised or fairly included within the issues raised does not 

implicate the protections of section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679, 

italics added.) We also note that at no point did Greyhound request leave to file a 

supplemental brief pursuant to California Rules of Court, rule 8.200(a)(4), addressing 

Even Zohar, which was filed on July 20, 2015. Instead, Greyhound merely filed a letter 

brief on the new authority citing Even Zohar. That letter brief was filed on April 14, 

2016.
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court itself. ‘It is the exclusive means for modifying, amending or revoking an order. 

That limitation is expressly jurisdictional.’ ” However, Greyhound neglects to discuss 

the procedural posture in Gilberd. There, the defendant filed a motion for summary 

judgment, and the plaintiff responded by filing a petition for relief from the claim filing 

requirements under Government Code section 946.6 and a simultaneous motion for leave 

to file an amended complaint. (Gilberd, at pp. 1497-1498.) The trial court then granted 

both of the plaintiff’s motions and dismissed the defendant’s motion for summary 

judgment as moot. (Id. at p. 1498.) The defendant then moved for reconsideration of 

those rulings and in the alternative, requested a new trial or in further alternative, relief 

under section 473 for counsel’s failure to comply with a local rule about requesting oral 

argument after a tentative ruling. (Gilberd, at p. 1498.) The defendant’s counsel sought 

relief under section 473 due to mistake, inadvertence, and excusable neglect, asserting 

that counsel was in trial that week and that his office had experienced recent and 

substantial turnover. (Gilberd, at p. 1498 & fn. 1.) The trial court granted the 

defendant’s motion for reconsideration and vacated its prior ruling.7 (Id. at p. 1498.)

On plaintiff’s appeal, the Gilberd court properly reasoned that the defendant’s 

motion was a motion for reconsideration that did not meet the requirements under section 

1008 because it was not based on “ ‘new or different facts, circumstances, or law.’ ” 

(Gilberd, supra, 32 Cal.App.4th at pp. 1499-1500.) The defendant had asserted new law, 

contending that the trial court misinterpreted California law in its initial decision and the 

defendant relied upon “ ‘different’ ” law when it reiterated its prior reasoning and 

authorities for rejecting the appellant’s Government Code section 946.6 petition. The 

 

7

 The trial court also vacated its order granting relief pursuant to Government Code 

section 946.6; denied the plaintiff’s Government Code section 946.6 petition, and 

sustained a demurrer that the defendant filed to the first amended complaint without leave 

to amend. The trial court apparently never ruled on the section 473, subdivision (b),

request for relief. (Gilberd, supra, 32 Cal.App.4th at p. 1498.)
12

defendant also claimed that it had not intended to waive oral argument on the initial 

motions and this constituted a “new” fact or circumstance sufficient to satisfy the statute. 

The Gilberd court rejected both arguments. (Gilberd, at p. 1500.) As for the alternative 

section 473 motion, the court concluded that the defendant was in fact seeking 

reconsideration of the trial court’s ruling. (Gilberd, at pp. 1500-1501.) The court 

reasoned, “To hold, under the circumstances presented in this case,

[8]

that the general 

relief mechanism provided in section 473 could be used to circumvent the jurisdictional 

requirements for reconsideration found in section 1008 would undermine the intent of the 

Legislature as specifically expressed in section 1008, subdivision (e): ‘No application to 

reconsider any order . . . may be considered by any judge or court unless made according 

to this section.’ ” (Id. at p. 1501, italics added.) As can be seen by the italicized phrase 

in the preceding quote, the Gilberd court’s discussion of the interplay between section 

473 and 1008 related to the circumstances of that case. And the circumstances in Gilberd

were that counsel had sought relief under section 473 for the specific reason that he had 

not intended to waive oral argument on the trial court’s tentative ruling. (Gilberd, at 

p. 1498.)

Here, plaintiff sought relief under section 473 from a dismissal for failure to pay 

the transfer fees. Accordingly, Gilberd has no application here. More importantly, 

Gilberd does not conflict with our high court’s recent detailed statutory analysis 

regarding the interplay between section 473, subdivision (b), and section 1008 in Even 

Zohar.

In its reply brief, for the first time Greyhound cited this court’s opinion in 

Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315 (Vandermoon), and did so without 

 

8

 In its briefing, Greyhound relied heavily on Gilberd. In doing so, Greyhound partially 

quoted this language from Gilberd, twice omitting the court’s contextual reference to 

“under the circumstances presented in this case.”
13

analysis.9 Vandermoon does not help Greyhound. There, a full trial was conducted in 

the defendants’ absence after neither the defendants nor their counsel appeared on the 

date set for trial. The defendants moved for relief under the mandatory provision in 

section 473, subdivision (b), on the grounds that their counsel failed to inform them of 

the trial date. The trial court denied relief on the ground that the motion was not made 

within a reasonable time, and the judgment was neither a “default” nor a “default 

judgment” within the meaning of the statute. (Vandermoon, at pp. 317-319.) Under 

these circumstances, on appeal this court properly rejected the “proposition that the 

uncontested trial in their absence and the resulting judgment was the ‘procedural 

equivalent of a default’ and thus subject to the mandate of section 473(b).” 

(Vandermoon, at p. 320.) The Vandermoon opinion specifically addressed defaults and 

default judgments, not dismissals under section 473. This court held that “for purposes of 

the mandatory provision of section 473(b), a ‘default’ means only a defendant’s failure to 

answer a complaint, and a ‘default judgment’ means only a judgment entered after the 

 

9

 In Greyhound’s petition for rehearing, it pointed out that we had not discussed 

Vandermoon in our original opinion. Greyhound provided analysis concerning 

Vandermoon for the first time in its petition. Vandermoon is not helpful to Greyhound, 

and it was not cited in the opening brief but instead was cited for the first time in the 

reply brief without analysis. We are under no obligation to discuss that case in our 

opinion. (People v. Whitney (2005) 129 Cal.App.4th 1287, 1298 [points raised for the 

first time in a reply brief will not be considered unless good reasons is shown for the 

failure to present them earlier]; People v. Failla (2006) 140 Cal.App.4th 1514, 1519, fn. 3 

[same]; People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2 [failure to raise points 

in the opening brief deprives respondent the opportunity to answer the argument or can 

result in delay related to additional briefing]; People v. Freeman (1994) 8 Cal.4th 450, 

482, fn. 2 [“We discuss those arguments that are sufficiently developed to be cognizable. 

To the extent [a party] perfunctorily asserts other claims, without development . . . , they 

are not properly made, and are rejected on that basis”].) Nevertheless, we shall exercise 

our discretion to discuss Vandermoon notwithstanding Greyhound’s failure to comply 

with the rules of appellate procedure.
14

defendant has failed to answer and the defendant’s default has been entered.” 

(Vandermoon, at p. 321.)

In English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 133-134, 

as modified on December 27, 2001 (English), another case Greyhound first cited in its 

reply brief,10 this court reasoned that section 473 did not provide relief where the trial 

court granted summary judgment after the plaintiff opposed the summary judgment 

motion on the grounds that she needed more time to complete discovery. There, the trial

court declined to grant a continuance of the summary judgment motion on the ground that 

the plaintiff failed to state what essential facts would have been discovered that would 

have raised a triable issue of material fact on any of her claims and granted the motion for 

summary judgment. (English, at p. 134.) The plaintiff’s counsel then filed a motion 

under section 473, contending that he had “ ‘neglected to submit a substantive 

opposition’ to the motion for summary judgment ‘based on [his] mistaken belief that he 

only had to explain why [his] firm had not been dilatory in pursuing the case.’ ” 

(English, at p. 134.) Limiting the holding in English to summary judgments, this court 

expressly stated, “[W]e conclude the mandatory provision of section 473(b) does not 

apply to summary judgments because a summary judgment is neither a ‘default,’ nor a 

‘default judgment,’ nor a ‘dismissal’ within the meaning of section 473(b).” (Id. at 

p. 133, italics added.) Accordingly, “regardless of whether summary judgment was 

entered against English because of her counsel’s mistake or neglect, relief from the 

judgment was not available to her under the mandatory provision of section 473(b).” (Id. 

at p. 138.) In discussing English, a leading treatise has noted section 473, 

 

10

 Although Greyhound provided legal analysis regarding English in its reply brief, it did 

not discuss or even cite that case in its opening brief. Again, we exercise our discretion 

to address the points raised in Greyhound’s reply brief notwithstanding the failure to 

comply with the rules of appellate procedure. (See fn. 9, ante.)
15

subdivision (b), does not provide relief from summary judgment motions because 

dismissals based on summary judgment are based on a determination of the merits and 

the plaintiff has had his or her day in court. (Weil & Brown, Cal. Practice Guide: Civil 

Procedure Before Trial (The Rutter Group 2016) ¶ 5:300, p. 5-84 (Weil & Brown).)

In reviewing the historical evolution of section 473, this court in English observed 

that the reason the Legislature added the word “ ‘dismissal’ ” to the mandatory provision 

of the statute “was the State Bar’s conclusion ‘ “that it is illogical and arbitrary to allow 

mandatory relief for defendants when a default judgment has been entered against them 

due to defense counsel’s mistakes and to not provide comparable relief to plaintiffs 

whose cases are dismissed for the same reason.” ’ ” (English, supra, 94 Cal.App.4th at 

p. 140, italics added.) This court went on to observe, “By inserting the word ‘dismissal’ 

into the mandatory provision of the statute, the Legislature now required the courts to 

vacate any ‘resulting default’ or ‘resulting default judgment or dismissal’ when the other 

requirements of the mandatory provision were met.” (Ibid.) This court “construe[d] the 

word ‘dismissal’ as having a limited meaning similar to the term ‘default judgment.’ ” 

(Id. at p. 145.) This construction was supported by the history of the mandatory 

provision, and the purpose of the 1992 amendment, which was to give the plaintiffs the 

functional equivalent of the default provision for the defendants. (Ibid.) “Thus, where a 

defendant was entitled to mandatory relief from a ‘default’ or ‘default judgment’ 

resulting from attorney mistake, inadvertence, surprise, or neglect, a plaintiff would be 

entitled to mandatory relief from a ‘dismissal’ resulting from similar circumstances.” 

(Ibid.) Thus, as this court observed in English, the word “dismissal” was added precisely 

to address cases like the instant case, where the dismissal is the functional equivalent of a 

default for a plaintiff.

In our view, nothing in English or Vandermoon is discordant with our high court’s 

more recent decision in Even Zohar. Furthermore, we view both cases as being in accord 

with our reasoning in this case. The dismissal here was not a dismissal based on the 
16

merits like in Vandermoon and English; the plaintiff here never had her day in court. 

(See Weil & Brown, supra, ¶¶ 5:299.2, 5:300, pp. 5-82 to 5-84.)

Gee moved to set aside the judgment under section 473, subdivision (b), and was 

granted relief because of her attorney’s error in failing to pay the change of venue fees. 

Gee’s motion was not a renewed motion but an original motion; therefore, section 1008 is 

inapplicable. Accordingly, we reject Greyhound’s assertion that the trial court lacked 

jurisdiction to grant Gee’s motion. Section 473, subdivision (b), can provide relief when 

an action is dismissed due to a plaintiff’s counsel’s mistake or inexcusable neglect related 

to the failure to pay change of venue fees.

II. Sufficiency of Gee’s Showing under Section 473

Greyhound contends that Gee failed to adequately show entitlement to relief under 

section 473, subdivision (b). Greyhound argues that Gee’s motion was “fatally flawed”

because Gee “never addressed the circumstances that led to the granting of Greyhound’s 

motion to dismiss.” Specifically, Greyhound argues that Gee’s motion only focused on 

the failure to pay the transfer fees and not the failure to respond to Greyhound’s motion 

to dismiss or appear at the hearing on the motion to dismiss.

As we have noted, the trial court does not have discretion to refuse relief under 

section 473, subdivision (b), if attorney mistake, inadvertence, surprise, or neglect is 

shown. (Leader, supra, 89 Cal.App.4th at p. 612.) “Under this provision, a party will be 

relieved if a default judgment or dismissal is the result of its attorney’s mistake, 

inadvertence, surprise, or neglect, without regard to whether the neglect is excusable.” 

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225 (Henderson), 

italics added.)

“The range of attorney conduct for which relief can be granted in the mandatory 

provision is broader than that in the discretionary provision, and includes inexcusable 

neglect.” (Leader, supra, 89 Cal.App.4th at p. 616.) The purposes of the mandatory 

relief provision is to promote the determination of actions on their merits, to relieve 
17

innocent clients of the burden of the attorneys’ fault, to impose the burden on the erring 

attorney, and to avoid the precipitation of additional litigation in the form of malpractice 

suits. (Even Zohar, supra, 64 Cal.4th at pp. 838-839.)

Greyhound contends that the explanation given by Hassan lacks credibility

because he did not explain why he ignored the motion to dismiss, the communications 

Greyhound purportedly sent him, and the court’s order directing that Gee pay the transfer 

fees. Greyhound further contends that because Hassan’s explanation lacked credibility, 

Gee has failed to establish that the explanation was what caused the attorney error.

The trial court’s ruling concluding there were grounds for section 473, subdivision

(b), relief implies it believed counsel’s explanation. Credibility is an issue for the fact 

finder, and we do not reweigh evidence or reassess the credibility of witnesses. 

(Johnson, supra, 28 Cal.App.4th at p. 622.) At best, the record discloses evidence that 

gives rise to “ ‘conflicting reasonable inferences, one of which supports the findings of 

the trial court.’ ” (Id. at p. 623.) Accordingly, on this point, we defer to the trial court’s 

implied finding of credibility and reject Greyhound’s apparent attempt to encourage us to 

make a different credibility determination. (See id. at pp. 622-623.)

Moreover, Gee’s counsel’s failure to appear at the hearing or otherwise respond to 

the dismissal motion was not the basis for dismissal identified in Greyhound’s motion to 

dismiss nor was it the basis for the court’s ruling. Rather, Greyhound sought dismissal 

and the court dismissed the complaint because Gee failed to pay the change of venue fees 

pursuant to court order. Accordingly, it was appropriate for Gee’s counsel to focus on 

the failure to pay the change of venue fees in his declaration to support his motion for

relief under section 473, subdivision (b).

Further, the failures Greyhound complains of (i.e., that Gee’s counsel ignored 

Greyhound’s communications and notice from the trial court) at best, amount to 

inexcusable attorney neglect. But as we have noted, mandatory relief under section 473, 

subdivision (b), does not require that the attorney neglect be excusable. Indeed, 
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inexcusable neglect is precisely the kind of attorney neglect contemplated by the 

provision for mandatory relief under section 473, subdivision (b). (See Leader, supra, 89 

Cal.App.4th at p. 616 [reasoning that the mandatory relief provision includes inexcusable

attorney neglect]; Henderson, supra, 187 Cal.App.4th at p. 225 [same].)

Accordingly, Gee’s showing for mandatory relief under section 473, 

subdivision (b), was sufficient, and the trial court did not abuse its discretion in granting 

relief.

DISPOSITION

The judgment is affirmed.

 MURRAY , J.

We concur:

 HULL , Acting P. J.

 DUARTE , J.