California Court of Appeals, Third District, San Joaquin
ANTHONY H. NOCETI et al., Plaintiffs and Appellants,
REX R. WHORTON, Defendant and Respondent.
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of San Joaquin County, No. CV033872 Carter P. Holly, Judge.
Downey Brand, Anthony L. Vignolo and Jennifer L. Williams for Plaintiffs and Appellants.
Michael & Cammack, John L. Cammack and Susiejane Eastwood for Defendant and Respondent.
In this appeal we conclude that properly noticed plaintiffs who failed to appear for trial because their attorney miscalendared the date—a trial at which the court granted judgment of $0 to the appearing defendant after reviewing the entire file—are not entitled to mandatory relief under Code of Civil Procedure section 473, subdivision (b) (hereafter, section 473(b)). Such a judgment is not a “dismissal” against plaintiffs for which mandatory relief applies. We also remand this matter to the trial court for its consideration of discretionary relief under section 473(b).
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, plaintiffs Anthony H. Noceti and Carol L. Noceti entered into a purchase agreement with defendant Rex R. Whorton to buy his interest in approximately 109 acres of land near Stockton. When defendant allegedly did not complete the purchase agreement, plaintiffs sued him for specific performance and breach of contract.
In October 2009, the trial court granted a default judgment against defendant based on plaintiffs’ offer of proof. In April 2011, defendant moved successfully to set aside this judgment.
Trial was set thereafter for October 3, 2011. Although properly notified of this trial date, plaintiffs and their counsel did not appear. Defendant did, however, and moved the trial court for judgment. The court “reviewed the entire file” and granted judgment for defendant in the amount of “$0 principal, $0 pre-judgment interest, $0 attorney fees and $0 costs.”
Plaintiffs’ counsel subsequently moved to set aside this judgment pursuant to section 473(b); that is the motion at issue in this appeal. The motion included counsel’s declaration explaining he erroneously calendared the trial date for October 10, 2011, because of “serious chronic health problems” and “the loss of [his] secretary.” Plaintiffs’ counsel was unable even to appear at the section 473(b) hearing due ...