In certain circumstances, plaintiffs may move to set aside an anti-SLAPP judgment under the mandatory provision of Code of Civil Procedure section 473b, claiming attorney “mistake,” “inadvertence,” or “surprise.” But such a motion would be unavailing because it does not seek relief from a default, default judgment, or dismissal, but rather a judgment entered pursuant to the anti-SLAPP statute, rendering CCP § 473 inapplicable.
Not only is there no authority supporting the application of CCP § 473(b) to a judgment entered pursuant to an anti-SLAPP motion, but also the cases that have dealt with similar issues concerning demurrers and motions for summary judgment strongly suggest that CCP § 473(b) should not apply. Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989-990 (noting that attorney affidavit provision does not permit relief from summary judgment motions or judgments after trial); Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321 (holding that the mandatory relief provision did not apply to a judgment entered after the defendants failed to appear at trial); Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082 (dismissal after the sustaining of a demurrer based on a statute of limitations).
Indeed, in English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, the leading case on this issue, the court affirmed a denial of a motion to vacate a summary judgment under the mandatory relief provision of CCP § 473(b). In reaching the decision, the court performed a detailed analysis of the statute’s history and narrowly defined the terms “default,” “default judgment,” and “dismissal.” The court stated that the word “default” and the term “default judgment” were not the equivalent of a motion for summary judgment. “A ‘default judgment’ within the meaning of section 473(b) is a judgment entered after the defendant has failed to answer the complaint and the defendant’s default has been entered.” Id. at 143. The court stated that once the terms “default” and “default judgment” are correctly understood, it takes no great leap of logic to conclude that a summary judgment is neither a “default” nor a “default judgment” within the meaning of the mandatory provision of section 473(b). Id. Nor does a summary judgment constitute a “dismissal.” “Rather, it is a judicial determination that under the undisputed facts before the court, the moving party is entitled to prevail in the action as a matter of law.” Id. at 149.
Motions for summary judgment are similar to anti-SLAPP motions. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719 (anti-SLAPP statute operates like a “motion for summary judgment in ‘reverse.’”); Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 317 (“plaintiff’s burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.”). Therefore, like summary judgments, a judgment entered pursuant to an anti-SLAPP motion is not a default, default judgment, or dismissal pursuant to the reasoning of English and under the plain meaning of CCP 473(b).
Further, in situations where plaintiffs have submitted an opposition to an anti-SLAPP motion and the court fully considered their arguments, plaintiffs have undoubtedly gotten their “day in court.” Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350 (rejecting argument that counsel’s failure to properly request a continuance of a summary judgment hearing warranted mandatory relief under section 473 because plaintiff got his “day in court”—the trial court fully considered his opposition and granted defendant’s summary judgment motion on the merits); Gotschall v. Daley (2002) 96 Cal.App.4th 479 (‘“Day in court” does not guarantee a trial on the merits, but, rather, is interpreted to confer an opportunity to present evidence and argument in opposition to a motion to dismiss.”) (Emphasis added). Plaintiffs have an opportunity to present evidence in support of their opposition to a defendant’s anti-SLAPP motion. That they may fail to do so is insufficient to invoke the mandatory provision of CCP § 473(b).
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