English v. IKON Business Solutions, Inc. (2001)

EVAN ENGLISH, Plaintiff and Appellant, v. IKON BUSINESS SOLUTIONS, INC., Defendant and Respondent.

[Modification fn. * of opinion (94 Cal.App.4th 130) with no change in judgment.]

THE COURT. fn. † --

It is ordered that the opinion filed herein on December 4, 2001, be modified as follows:

1. The last paragraph on page 10 [94 Cal. App. 4th 138, advance report, 1st par.], that continues on page 11, shall be omitted. The following paragraph shall be inserted in its place:

To explain our conclusion, and our understanding of how the Avila court and others have come to extend the reach of the mandatory provision of section 473(b) beyond what the Legislature intended, we begin by tracing the history and development of that provision. The discretionary provision of section 473(b) has been part of California law since 1851. (Stats. 1851, ch. 5, § 68, p. 60 [enacting § 68 of Practice Act, predecessor of § 473]; see also Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal. App. 4th 40, 43, fn. 1; Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal. App. 4th 780, 788.) The mandatory provision, however, is of much more recent vintage, having its origin in a 1988 amendment to the statute. (Stats. 1988, ch. 1131, § 1, p. 3631.) In its original form, the mandatory provision provided in relevant part: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is timely, in proper form, and accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any resulting default judgment entered against his or her client unless the court finds that the default was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. . . ." (Ibid.)

2. In the first paragraph on page 31, lines 3 and 4 [94 Cal. App. 4th 149, advance report, 3d par.], delete the case citation in parenthesis. Replace with the following: [94 Cal. App. 4th 708d]

(See, e.g., Uriarte v. United States Pipe & Foundry Co., supra, 51 Cal.App.4th at p. 791.)

This modification does not affect the judgment.

FN *. This modification requires movement of the text affecting pages 138-139 of the bound volume report.

FN †. Before Blease, Acting P.J., Sims, J., Nicholson, J.