Judge: Alison Mackenzie, Case: SC129418, Date: 2023-05-23 Tentative Ruling

Case Number: SC129418    Hearing Date: May 23, 2023    Dept: 207

Background

Plaintiff HP Group G.C., Inc. brought this action in 2018 seeking to recover payment for work performed as the general contractor on a construction project. Defendants Shahab Binafard aka Shawn Binafard, individually and as trustee of The Shahab & Azadeh Binafard Trust, and Azadeh Binafard aka Azadeh Azadegan, individually and as trustee of The Shahab & Azadeh Binafard Trust (collectively “Cross-Complainants”) filed a Cross-Complaint against Plaintiff and other parties alleging defects in the construction project which formed the basis of Plaintiff’s claim. In February 2022, the parties notified the Court that a settlement had been reached as to almost all the parties to the action. Based on this representation, the Court vacated the trial date in this action and set an Order to Show Cause regarding the resolution of the case as to the remaining parties. After granting Cross-Complainants a series of continuances, the Court dismissed the action with prejudice on March 8, 2023, due to lack of prosecution.

Cross-Complainants now move the Court to vacate the March 8 dismissal of their operative Cross-Complaint, arguing it was the result of attorney mistake or neglect. Cross-Complainants’ motion is unopposed.

Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P. § 473(b).) Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Id.) Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Id; see also English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

Analysis

On February 9, 2022, Plaintiff filed a Notice of Settlement indicating a nearly-global settlement had been reached in this action. On February 14, the Court vacated the trial date in this action and set an Order to Show Cause (“OSC”) re: Dismissal for April 28, 2022. On April 28, 2022, Cross-Complainants informed the Court they would seek entry of default against the remaining non-settling parties and the Court set a further OSC re: Dismissal and Entry of Default for August 4, 2022. On August 4, the Court continued this OSC to October 6, 2022, upon Cross-Complainants’ representation that entry of default would be sought against the remaining parties. Cross-Complainants failed to appear at the October 6 hearing, and the Court again continued the OSC re: dismissal and entry of default to November 9, 2022, and set a further OSC for that same date regarding Cross-Complainants’ failure to appear along with a third OSC as to why the case should not be dismissed.

At the November 9 hearing, the Court granted Cross-Complainants’ request to continue all three OSCs to February 15, 2023, noting no further continuances would be granted. On February 15, 2023, the Court on its own motion again continued all three OSCs to March 8, 2023. On March 8, the Court ordered “all remaining complaints and cross-complaints dismissed with prejudice for lack of prosecution.” Cross-Complainants did not appear at the March 8 hearing.

Cross-Complainants now ask the Court to vacate the dismissal of the operative Cross-Complaint so that they may pursue default and settlement as to the remaining parties in this action. Their motion is based on the assertion that the case was dismissed because of attorney mistake, inadvertence, surprise, or neglect under Code Civ. Proc. § 473(b). Cross-Complainants claim the Court dismissed this action on March 8 due to the failure of its counsel to appear at the March 8, 2023, hearing. Counsel states his failure to appear at the hearing was due to his mistake and neglect in failing to place that hearing date on his calendar. Cross-Complainants’ argument is belied by the clear and unambiguous language of the March 8 order, which states that the action was being dismissed due to lack of prosecution. Nowhere does the March 8 order indicate that the action was dismissed due to counsel’s failure to appear at the hearing.

The instant motion does not make any showing that the lack of prosecution in securing the default or settlement of the remaining parties was the result of attorney mistake, inadvertence, or neglect. As such, the motion does not demonstrate the March 8 order dismissing the action was entered because of such attorney error such as to justify mandatory relief under Code Civ. Proc. § 473(b). Cross-Complainants’ motion is DENIED without prejudice to file a new motion for relief from dismissal pursuant to section 473(b) showing the dismissal for lack of prosecution was entered because of excusable neglect or attorney’s mistake.

Conclusion

Cross-Complainants’ motion for set aside dismissal is DENIED without prejudice.