Dollase v. Wanu Water Inc.

Summary

The California Court of Appeal reversed an order denying Wanu Water Inc.’s motion for mandatory relief under Code of Civil Procedure section 473(b). The court held that the motion was timely, substantially complied with the requirement to include a proposed pleading, and was supported by evidence that attorney neglect caused the default. The matter was remanded with directions to vacate the default and default judgment, recall the writ of execution, vacate the levy, and return funds collected from Wanu.

Holdings

1. A motion to quash service of process may qualify as the 'other pleading proposed to be filed' under Code of Civil Procedure section 473(b), and Wanu substantially complied with the statutory requirement despite the motion not being available in the trial court file at the hearing.
2. Mandatory relief was required because there was no substantial evidence that Wanu caused the entry of default, while the attorney-fault affidavit established attorney neglect as a cause of the default.

Questions Presented

1. Whether Wanu's application for mandatory relief under Code of Civil Procedure section 473(b) was in proper form when it was accompanied by a proposed motion to quash service rather than a proposed answer.
2. Whether substantial evidence showed that Wanu, rather than its attorney, caused the entry of default, thereby permitting denial of mandatory relief under section 473(b).

Disposition

reversed_and_remanded