Judge Anne Hwang, Case Number: 22STCV21973, Date: 2024-02-01 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On July 7, 2022, Plaintiff Angel Avetisyan (“Plaintiff”) filed a complaint against Defendants 99 Cents Only Stores LLC (“Defendant”), and Does 1 to 60, for injuries related to a slip and fall.

Plaintiff failed to timely respond to discovery by Defendant and a motion to compel discovery against Plaintiff was granted on January 24, 2023. Plaintiff was ordered to serve verified responses, without objections, to discovery within 30 days of the Court’s orders. (Min. Order, 1/24/23, 1/25/23.) On April 7, 2023, after Plaintiff failed to serve responses, the Court granted a motion for terminating sanctions and dismissed the complaint without prejudice. (Min. Order, 4/7/23.) Plaintiff failed to file an opposition to the motion.

On October 5, 2023, Plaintiff filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 473(b). No opposition has been filed.

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect. This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) Mandatory relief is only available when a party fails to oppose a dismissal motion (“which are procedurally equivalent to a default”). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) With an attorney affidavit of fault, there is no requirement that the attorney’s mistake or inadvertence be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) The affidavit also does not need to contain a reason for the mistake. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Additionally, since an attorney is responsible for supervising the work of legal assistants, an error by an employee is considered the attorney’s error for purposes of section 473(b) relief. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64 [paralegal’s error in calendaring an OSC hearing was attributable to the attorney and subject to mandatory relief].)

Procedurally, the present motion is timely because it was filed within six months after the case was dismissed. (See Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 58 [the six-month limitations periods of the mandatory and the discretionary relief provisions of section 473(b) mean the longer of six calendar months or 182 days].) Here, 182 days from the dismissal on April 7, 2023, was October 6, 2023. The instant motion was filed October 5, 2023.

The Declaration of Henrik Sardarbegian states: “I am of the understanding that as the attorney of record, the errors and mistakes of my staff are ultimately my responsibility. I believe that Defense has incurred costs and I am willing to pay for those costs in order to not prejudice Defense in any way due to my errors and mistakes. I understand that the Covid-19 Pandemic has affected everyone and not just me or my office.” (Sardarbegian Decl. ¶¶ 4–5.)

Here, the declaration of counsel does not attest that there was a mistake or neglect. At most, the declaration asserts that the Covid-19 pandemic “affected everyone” and that counsel is responsible for mistakes by staff. However, there is no declaration that the pandemic affected this case, or that staff made mistakes relating to this case.[1]

[1] The body of the motion argues that “errors of employees (mis-calendaring dates of hearings and not notifying Plaintiff’s Counsel of Discovery and Motions), have led to the dismissal of the case,” but these facts are not asserted in the declaration of counsel. (Motion at p. 5.)

DEPT:	32
HEARING DATE:	February 1, 2024
CASE NUMBER:	22STCV21973
MOTIONS:	Motion to Set Aside Dismissal
MOVING PARTY:	Plaintiff Angel Avetisyan
OPPOSING PARTY:	None