Judge: Anne Hwang, Case: 22STCV29193, Date: 2024-05-14 Tentative Ruling

Case Number: 22STCV29193    Hearing Date: May 14, 2024    Dept: 32

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. 

MOTION 

            Plaintiff Enrique Garcia Pina (“Plaintiff”) moves to set aside the Court’s order denying Plaintiff’s Petition for Relief from the Claims Statute.  Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) opposes the motion. 

ANALYSIS 

Under Code of Civil Procedure section 473, subdivision (b), a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)   “Section 473(b) provides for both discretionary and mandatory relief.”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

To obtain relief under CCP §473 based on attorney misconduct, a party “[g]enerally . . . must plead that the neglect or omission of his [or her] attorney was excusable, because inexcusable neglect is ordinarily imputed to the client, and his [or her] redress is an action for malpractice.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal. App. 3d. 725, 738; see Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4^th 249, 258, “’[a] party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his [or her] client and may not be offered by the latter as a basis for relief’”; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 (“[t]he client’s redress for inexcusable neglect by counsel is, of course, an action for malpractice”).)  

Plaintiff moves for relief under CCP section 473(b), arguing the failure to appear at the hearing on the Petition for Relief from the Claims Statute was due to the mistake, inadvertence and/or excusable neglect of Plaintiff’s counsel. Plaintiff’s counsel’s office inadvertently failed to calendar both the date for the FSC, and the date set for the trial. Consequently, Plaintiff inadvertently failed to appear for the FSC. At the FSC, the Court vacated the trial date and set a hearing date on Plaintiff’s Petition for Relief from Claims Statute for March 6, 2024. Unfortunately, the minute order providing notice to Plaintiff of the March 6, 2024 hearing date was mailed Plaintiff’s counsel’s former address, leading to the inadvertent absence of Plaintiff at the March 6, 2024 hearing on Plaintiff’s Petition for Relief from Claims Statute.

The Court finds that Plaintiff is not entitled to relief under Code of Civil Procedure Section 473(b).  First, the mandatory provision applies only to defaults, default judgments, and dismissals. (Spine Care and Orthopedic Physicians (2020) 44 Cal. App. 5th 167.) As such, the mandatory provision is not available.

Next, the Court notes that relief under Section 473 is properly denied where “an opposition was, though apparently timely and procedurally adequate, inadequate in substance.”  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 683.)  Similarly, here a pleading on the merits was filed, however, it was inadequate and the petition was denied as a result. Where a “case [is] not a default but rather a motion lost on its merits, after an opposition was filed [then]” the relief in “Section 473 was not meant to apply to [those] facts.”  (Id.) (See also Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258, “’[c]onduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not . . . excusable,’” and ‘”[t]o hold otherwise would be to . . . effectively eviscerate the concept of attorney malpractice’”.)  “Section 473 cannot be used to remedy attorney mistakes, such as failure to provide sufficient evidence in opposition to a summary judgment motion.  There is nothing in Section 473 to suggest it was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.”  (Wiz Technology Inc. v. Coopers & Lybrand LLP (2003) 106 Cal. App. 4^th 1, 17.  See also Cochran v. Linn (1984) 159 Cal. App. 3d 245, 251 (negligence in failing to plead the case properly, or to produce sufficient evidence to oppose a summary judgment, does not warrant relief under section 473).) As such, CCP section 473 does not afford Plaintiff relief as a pleading on the merits was filed, but it was inadequate, and section 473 cannot be used to remedy attorney mistakes such as this one. Relief under Section 473(b) does not provide “an escape hatch for any and all tactical errors and mistaken judgments.”  (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 484.)

CONCLUSION AND ORDER

Accordingly, the Court denies Plaintiff’s Motion for Relief under CCP section 473(b) from Order Denying Petition for Relief from Claims Statute.

Plaintiff is ordered to provide notice of this Order and file proof of service of such.