Mandatory Relief Denied To Plaintiff Whose Attorney Had Cancer, Missed The Trial And Later Died.

Plaintiff’s lawyer was properly noticed of the trial date, but miscalendared the date, and on the date of the trial, the court granted a judgment of $0 to the appearing defendant. Plaintiff’s counsel thereafter moved, pursuant to Code of Civil Procedure section 473(b), to set aside the judgment. The motion included a declaration explaining how the mistake was made and that he had “serious chronic health problems” and had lost his secretary. Due to the effects of recent chemotherapy, plaintiff’s counsel was unable to appear at the hearing on the motion. Plaintiff’s counsel later died of cancer. The trial court denied the motion. Plaintiff retained new counsel and filed an appeal. In affirming the denial of mandatory relief, the appellate court noted:  “The record does not indicate the trial court granted judgment for defendant, let alone a dismissal, simply because plaintiffs failed to appear for trial. The trial court considered the ‘entire file’” before entering judgment for defendant. Nonetheless, the appellate court reversed because the trial court did not consider whether or not plaintiff is entitled to the discretionary relief permitted under the statute. Perhaps revealing what the appellate court really thought about the situation, plaintiff was awarded costs on appeal.  (Noceti v. Whorton (Cal. App. Third Dist.; March 18, 2014)224 Cal.App.4th 1062, [169 Cal.Rptr.3d 251].)