Northern California Record

Monday, November 18, 2019

Appellate court denies appeal of dismissal

By S. Laney Griffo | Apr 14, 2017

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SAN JOSE - A California appellate court dismissed an appeal of a lower court’s decision to throw out a case after the plaintiff's attorney missed the hearing.

The Sixth District Court of Appeal found that none of the plaintiff Lenore Shively’s three motions filed in a trial court were valid to reverse that court's dismissal.

Shively had filed a negligence and premises liability suit against East Side Union School District, Piedmont Hills High School and the South Bay Stallions on May 22, 2013 after she slipped and fell at a sporting event.

On Sept. 13, 2013, a case management conference was scheduled. The time of the conference was moved to earlier in the day, but Shively’s attorney was not aware of the time change and missed the conference.

Another hearing was scheduled for Nov. 7, 2013, but the notice of the hearing was sent to the attorney's old address, so he missed that hearing as well.

The case was dismissed. The attorney did not find out about the dismissal until May 2014.

Shively then filed three motions with the court.

The first motion was a relief from dismissal using Section 473 of the Code of Civil Procedure, which says a court can relieve a party of its counsel if the counsel has made a mistake. However, the motion was not filed within six months of the dismissal which is required by law.

The second motion was a relief from dismissal argued that the court could reverse a decision if it made a clerical mistake.

In the the third motion, she again claimed the court should reverse the dismissal because it made a clerical mistake.

All three motions used the same facts, and all three were denied by the trial court.

Shively filed a motion to appeal for the court’s dismissal and for the court’s denial of her third motion.

The appellate court denied the appeal for the court’s original dismissal. 

“This is more than the maximum 180 days allowed for an appeal, and we therefore have no jurisdiction to review the dismissal order,” the court said in the opinion.

The appellate court also denied the court’s denial of her third motion because it used the same facts of the second motion and was therefore not a new motion.

“It is difficult to avoid the conclusion that Shively’s third motion was a ‘sly’ evasion meant to simply get another bite at the apple denied to her before,” the opinion said.

The appeal was dismissed.

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California 6th District Court of Appeal