Judge: Armen Tamzarian, Case: 20STCV37302, Date: 2023-04-06 Tentative Ruling

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Case Number: 20STCV37302    Hearing Date: April 6, 2023    Dept: 52

Plaintiffs Bill Starkov and Jessica Starkov’s Motion for Relief from Default/Dismissal

Plaintiffs Bill Starkov and Jessica Starkov move for relief from the court’s order granting defendant Interinsurance Exchange of the Automobile Club’s motion for terminating sanctions.

Relief from Terminating Sanctions

Plaintiffs seek relief based on their attorney’s fault.  “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  (CCP § 473(b).)  “[A] ‘dismissal’ for purposes of the mandatory relief provision” includes “a dismissal that results from the failure to oppose a motion to dismiss.”  (Matera v. McLeod (2006) 145 Cal.App.4th 44, 64 (Matera).)

The court finds that plaintiffs’ counsel Steve White’s neglect in failing to file an opposition to defendant’s motion for terminating sanctions caused the dismissal against his clients.  Terminating sanctions are “ ‘ordinarily a drastic measure which should be employed with caution.’ ”  (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.)  Appropriate sanctions are those “ ‘suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment.’ ”  (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.)

White filed no opposition to the motion for terminating sanctions, though he appeared at the hearing to oppose the motion.  White attests that his “failure to timely respond to discovery and to file an opposition to the motion for terminating sanctions is entirely my fault, and due to my mistake.”  (White Decl., ¶ 3.)  White neglected to file any opposition to the motion, which was equivalent to a default.  Had he filed an opposition, the court would have exercised its discretion to decline entering terminating sanctions.  White defaulted on his opportunity to show that, despite plaintiffs’ disobedience of discovery orders, defendant had made progress in accomplishing the objects of discovery.  Defendant deposed plaintiff Bill Starkov on February 14.  (Id., ¶ 4.)  Plaintiffs also served discovery responses on February 21, the day before the hearing on the motion for terminating sanctions.  (Ibid.)  Defendant also conducted a site inspection that day.  (Ibid.)  Had White filed an opposition to the motion for terminating sanctions, the court would have found adequate grounds to deny the motion.

This case is analogous to Matera.  There, the trial court “found that [the attorney’s] neglect was the sole cause of defendants’ failure to oppose the motion for a terminating sanction.”  (Matera, supra, 145 Cal.App.4th at p. 53.)  The Court of Appeal “conclude[d] that defendants are entitled to relief from the defaults entered by the court as a result of [their attorney’s] neglect and from the resulting defaulting judgment, based on the mandatory relief provision of section 473, subdivision (b).”  (Id. at p. 68.)

Defendant argues mandatory relief is not available because White did more than “nothing at all” and made “some attempt to oppose” defendant’s motions, but “simply failed to present sufficient evidence to support the Starkovs’ position.”  (Opp., p. 6.)  But he did not just fail to present sufficient evidence.  He failed to present any evidence because he filed none.  His statements at the hearing were not evidence.  

Defendant’s reliance on Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall) is misplaced.  Defendant argues that, like the attorney in that case, White did not “fail[] to appear for the hearing on the motion” to dismiss.  (Id. at p. 484.)  There, the trial court “granted defendant’s oral motion for dismissal based upon plaintiff’s inability to establish an essential element of his case, causation, without expert testimony.”  (Id. at p. 482.)  The Court of Appeal held applying the mandatory relief “provision to this case, in which counsel simply failed to present evidence of causation properly, would be contrary to the statute’s policy and would provide attorneys with a ‘perfect escape hatch’ for any and all tactical errors and mistaken judgments.”  (Id. at p. 484.) 

The attorney’s mistake causing dismissal was thus not simply failing to oppose a motion.  It was the nature of the mistake—not its severity—and the resulting dismissal that precluded mandatory relief.  The attorney moved for relief on the grounds that he “mistakenly believed it was unnecessary to name treating physicians who would give opinion testimony as experts in the expert witness disclosure, which “was a valid mistake of law.”  (Gotschall, supra, at p. 484.)  The mistake was not that he failed to meet the basic duty of opposing a dispositive motion.  His incorrect application of law resulted in losing the case on the merits.  The resulting dismissal was not akin to a default. 

Defendant also relies on Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, which is similarly distinguishable.  There, the parties settled the case, but plaintiff’s attorney failed to timely move for attorney fees.  (Id. at p. 337.)  The court dismissed the case, then the attorney moved for mandatory relief under Code of Civil Procedure section 473(b).  (Ibid.)  The Court of Appeal held that “as a matter of law, dismissal was not caused by counsel’s error.”  (Ibid.)  As the trial court stated, “ ‘The case was dismissed because the parties had reached a settlement and [Hernandez] has been paid in full under her settlement.’ ”  (Ibid.)  The plaintiff lost only her “opportunity to file and litigate her motion for attorney fees and costs before the court dismissed her settled case.”  (Id. at p. 338.)  The attorney’s mistake only resulted in losing an opportunity for further recovery—not the dismissal itself.  Attorney fees were ancillary to the dismissal.

Defendant’s Expenses

            Defendant asks the court to order plaintiffs’ counsel to pay $2,184 for defendant’s expenses.  “The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (CCP § 473(b).)  Defendant reasonably expended $2,184 in legal fees and costs in moving for terminating sanctions.  Plaintiffs’ counsel must compensate defendant for those expenses.

Disposition

            Plaintiffs Bill Starkov and Jessica Starkov’s motion for relief from dismissal is granted.  The court hereby vacates its order granting defendant’s motion for terminating sanctions on February 22, 2023.  The court hereby orders plaintiffs’ counsel Steve White to pay $2,184 in compensatory legal fees and costs to defendant Interinsurance Exchange of the Automobile Club within 7 days.