Can an opposing attorney seek relief from a judgment, dismissal, or other proceeding against the opposing attorney?

California, United States of America


The following excerpt is from Shukartsi v. Kesselman, B255912 (Cal. App. 2016):

Section 473, subdivision (b) provides for discretionary or mandatory relief from certain prior actions or proceedings in the trial court. "Under the discretionary relief provision, on a showing of 'mistake, inadvertence, surprise, or excusable neglect,' the court has discretion to allow relief from a 'judgment, dismissal, order, or other proceeding taken against' a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of 'mistake, inadvertence, surprise, or neglect,' the court shall vacate any 'resulting default judgment or dismissal entered.' " (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615-616.) Applications seeking relief under the mandatory provision of section 473 must be "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." ( 473, subd. (b).) The mandatory provision further adds that "whenever relief is granted based on an attorney's affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." (Ibid.)

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