Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00682, Date: 2024-03-15 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00682, Date: 2024-03-15 Tentative Ruling

Case Number: 23GDCV00682 Hearing Date: March 15, 2024 Dept: E

Hearing Date: 03/15/2024 – 8:30am
Case No. 23GDCV00682
Trial Date: UNSET
Case Name: ALEJANDRO REYES, an individual, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORATION AUTHORITY; Bus Driver Henry C. Alvarez an individual; and INTEGON NATIONAL INSURANCE COMPANY, a corporation

[TENTATIVE RULING– MOTION TO SET ASIDE/VACATE DISMISSAL]

BACKGROUND
Plaintiff filed an initial complaint on 4/4/2023 naming three Defendants – Los Angeles Country Metropolitan Transportation Authority, Henry C. Alvarez, and Integon National Insurance Company, a corporation.

On 8/15/2023, an Order to Show Cause Re: Failure to File Proof of Service was called for hearing and no appearances were made by, or for, either party. Proof of service had not been filed, so the Court indicated the following:

On the Court's own motion, the Order to Show Cause Re: Failure to File Proof of Service scheduled for 08/15/2023 is continued to 10/16/2023 at 08:30 AM in Department E at Glendale Courthouse.

Order to Show Cause Re: Sanctions of up to $250.00 Against Plaintiff and Plaintiff's Attorney and/or Dismissal of the Entire Action for Plaintiff's Failure to Appear on 8/15/2023 is scheduled for 10/16/2023 at 08:30 AM in Department E at Glendale Courthouse.

(Min. Order 8/15/2023, p.1.)

On 10/10/2023, before the Order to Show Cause scheduled for 10/16/2023, Plaintiff filed an FAC. The FAC listed Los Angeles County Metropolitan Transportation Authority, Bus Driver Henry C. Alvarez; and Integon National Insurance Company, a corporation as the three defendants.

On 10/16/2023, the Case Management Conference, Order to Show Cause Re: Failure to File Proof of Service, and the Order to Show Cause Re: Sanctions of up to $250.00 Against Plaintiff and Plaintiff’s Attorney and/or Dismissal of the Entire Action for Plaintiff’s Failure to Appear on 8/15/2023, were not called for hearing.

Further, on 10/16/2023, the Court ordered the FAC filed by Alejandro Reyes on 10/10/2023 dismissed without prejudice. Further, on 10/16/2023, the Court filed a Notice of Entry of Dismissal of the matter.

The instant motion pertains to Plaintiff seeking to vacate the dismissal entered in this case.

RELIEF REQUESTED¿
Plaintiff, Alejandro Reyes, moves this Court for an order to set aside/vacate the dismissal of this matter entered on October 16, 2023.

This motion is made on the following grounds:

1. On October 16, 2023, Plaintiff’s counsel Mr. Petale failed to appear at the Case Management Conference, due to the fact that he was engaged in a Trial, in the matter of Polk v. City of Long Beach, LASC Case No. BC717702.

2. On October 16, 2023, Plaintiff’s counsel Mr. Petale failed to appear at the Case Management Conference, due to his erroneous belief that this matter had been scheduled for a Status Conference in this Department on October 26, 2023.

3. Plaintiff’s counsel timely seeks relief, pursuant to the provisions of Code of Civil Procedure §473(b) and seeks discretionary and mandatory relief, based on his Declaration of Fault, attached hereto.

This Motion shall be based upon this Notice of Motion, on the Memorandum of Points and Authorities attached herewith, on the Declaration of Plaintiff’s counsel, Alexander J. Petale, Esq., on the pleadings, records and files of this matter and on such oral and documentary evidence as may be presented at the hearing on this Motion.

Procedural
Moving Party: Plaintiff, Alejandro Reyes
Responding Party: Defendant, Los Angeles County Metropolitan Transportation Authority, a Public Entity (Metro)

Moving Papers: Notice/Motion
Opposition Papers: Opposition
Reply Papers: No Reply

16/21 Day Lapse (CCP §12c and §1005(b): Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok
Correct Address (CCP §1013, §1013a): No– Plaintiff filed an initial complaint on 4/4/2023 and an amended complaint (FAC) on 10/10/2023. Both the initial complaint and the FAC listed three defendants. The initial complaint listed Los Angeles Country Metropolitan Transportation Authority, Henry C. Alvarez, and Integon National Insurance Company, a corporation as the three defendants. The FAC listed Los Angeles County Metropolitan Transportation Authority, Bus Driver Henry C. Alvarez; and Integon National Insurance Company, a corporation as the three defendants. The instant motion to vacate the dismissal of Plaintiff’s action was served by mail to two mailing addresses. One mailing address is allegedly the mailing address for Los Angeles County Metropolitan Transportation Authority (Metro), the other mailing address is allegedly for Integon National Insurance Company (Integon). The Court notes the following two issues as to why it cannot tell if this motion was properly served. First, none of the three Defendants have addresses listed on eCourt for their counsel, nor do they have addresses listed for themselves, for the Court to cross reference the proof of service and the addresses on file with eCourt. Second, if the Court assumes the two addresses listed on the proof of service for this motion are the proper mailing addresses for Metro and Integon, this motion still was not served on Defendant Henry C. Alvarez (as named in the original complaint) nor Bus Driver Henry C. Alvarez (as named in the FAC).

At the hearing, Plaintiff is to address how the Court would be able to know if this motion was served to the proper mailing addresses of the two Defendants listed in the proof of service. Presumably, this motion was served to Defendant Metro since Metro submitted an Opposition. However, Defendant Integon did not submit an Opposition, so it is possible that the address for Integon on Plaintiff’s proof of service is incorrect and that Integon did not receive this motion. Further, Plaintiff is to address why Defendant Henry C. Alvarez was not served this motion.

LEGAL STANDARD – MOTION TO VACATE/SET ASIDE DEFAULT/DISMISSAL
CCP §473(b) states as follows:

The 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the 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. 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. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(CCP §473(b).)

Carmel, LTD. v. Tavoussi sheds further light on CCP §473(b):

Section 473, subdivision (b), authorizes the trial court to relieve a party from a default judgment entered because of the party's or his or her attorney's mistake, inadvertence, surprise, or neglect. The section provides for both mandatory and discretionary relief. Mandatory relief is available “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 ....” (§ 473, subd. (b).) “[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612, 107 Cal.Rptr.2d 489 (Leader ).) Thus, to the extent that the applicability of the mandatory relief provision does not turn on disputed facts, but rather, presents a pure question of law, it is subject to de novo review. (Ibid.) Where the facts are in dispute as to whether or not the prerequisites of the mandatory relief provision of section 473, subdivision (b), have been met, we review the record to determine whether substantial evidence supports the trial court's findings. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631, 85 Cal.Rptr.2d 386 [findings of fact reviewed for sufficiency].) Evidence is substantial when it is of “ ‘ “ponderable legal significance,” ’ ” reasonable, credible, and of solid value. (Ibid.)

“The ‘attorney fault’ language was added to section 473 in 1988. Prior to that time, a litigant who suffered a default or default judgment due to inexcusable attorney error could only obtain relief if he or she could persuade the court that counsel's behavior amounted to ‘total abandonment’ of the client; otherwise attorney conduct that was ‘simply inexcusable’ fell between the two poles and provided no basis for relief. [Citation.] The amendments were clearly designed to fill this gap. The purpose was threefold: to relieve the innocent client of the consequences of the attorney's fault; to place the burden on counsel; and to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.” (Solv–All v. Superior Court (2005) 131 Cal.App.4th 1003, 1009, 32 Cal.Rptr.3d 202 (Solv–All ).) But the mandatory provision of section 473, subdivision (b), “protects only the innocent client [and] provides no relief for the culpable client who participates in conduct which led to the default....” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251–1252, 92 Cal.Rptr.2d 322 (Lang ).) If the trial court finds that the moving party's misconduct was a contributing cause of the default, that party “cannot rely on the mandatory relief provision of section 473.” (Lang, at p. 1252, 92 Cal.Rptr.2d 322.)

(Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399-400.)

ANALYSIS

Mandatory Relief
Plaintiff moves for relief both under the discretionary and mandatory relief portions of § 473(b).). The Court will first analyze this motion under the mandatory relief portion.

“[T]he superior court is only required to grant a motion for relief under the mandatory relief provision of section 473(b) if the three conditions are met: (1) the motion is timely filed, (2) is in ‘in proper form,’ and (3) is accompanied by an attorney affidavit attesting to, and showing that the challenged order was taken due to, attorney fault. (Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 63 citing Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1322-1323.)

“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.)

Here, the Court entered dismissal against Plaintiff on 10/16/2023. Therefore, mandatory relief can be granted if Plaintiff met the three conditions under the mandatory relief provision of § 473(b).

(1) The Motion is Timely Filed
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment…” (CCP § 473(b).) “We conclude that 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.” (Jiminez v. Chavez (2023) 97 Cal.App.5th 50, 58 citing Gonzales v. County of Los Angeles (1988) 199 Cal.App.3d 601.)

The Opposition does not argue that this motion is untimely.

The Court finds this motion timely. Dismissal was entered on 10/16/2023, and Plaintiff filed the instant motion on 11/06/2023. Further, setting aside the service issues that the Court previously mentioned as to whether this motion was properly served on all Defendants, the instant motion’s proof of service indicates service on 11/04/2023.

(3) Accompanied By an Attorney Affidavit of Fault
“[A]nd 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).)

Attached to Plaintiff’s motion is the declaration of Alexander J. Petale, counsel for Plaintiff.

In relevant part, Petale explains that he missed the first Order to Show Cause re: Failure to File Proof of Service scheduled for 8/15/2023 because he negligently failed to properly note the O.S.C. in his calendar. (Decl. Petale ¶2.)

Petale then explains that after the 8/15/2023 O.S.C. was re-set for 10/16/2023, he reviewed the pleadings and filed the FAC on 10/10/2023 before the O.S.C. was scheduled to be heard on 10/16/2023. (Decl. Petale ¶3.) As to why Petale was not present at the 10/16/2023 O.S.C., Petale explains that during the week of October 9, 2023 he was in trial in Long Beach and failed to note that this Court had set the hearing date for 10/16/2023. (Decl. Petale ¶3.)

Further, Petale states that on the morning of 10/16/2023 he was at the courthouse in Long Beach for the jury’s deliberations and was erroneously under the belief that the O.S.C. was set for 10/26/2023 instead of 10/16/2023. (Decl. Petale ¶4.)

In Opposition, Metro argues that Plaintiff’s motion failed to establish excusable mistake/neglect. Metro argues that Plaintiff does not explain why Metro was not served with the original summons and complaint.

Metro also points out that Plaintiff attempted to serve Metro with the summons and complaint on November 15, 2023 [presumably Metro meant the FAC since the FAC had already been filed by 11/15/2023], but since the matter was dismissed on 10/16/2023 service was not effectuated.

Metro also cites CCP § 583.210(b) and states that in this case no proof of service was filed by

Plaintiff. Lastly, Metro argues that Plaintiff’s motion does not explain why Plaintiff’s counsel did not attempt to litigate this case at all before the dismissal was entered on 10/16/2023.

No Reply was submitted as of 3/12/2024.

The Court does not find Opposition’s arguments availing for several reasons.

First, Metro argues that Plaintiff’s motion failed to establish excusable mistake/neglect. This argument is not availing because Plaintiff does not have to establish that the mistake/neglect was excusable. “By its terms, the mandatory provision applies when dismissal is caused by an attorney’s mistake, inadvertence, surprise, or neglect – whether or not excusable.” (Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, 336 citing Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 174.)

Second, Metro’s argument that Plaintiff does not explain why Metro was not served with the original summons and complaint and that Plaintiff’s counsel did not attempt to litigate the case at all before the dismissal was entered on 10/16/2023 is unavailing.

Under § 473(b), the application for relief must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect…” Both Petale’s motion and declaration admits his own negligence in failing to properly calendar the 8/15/2023 O.S.C and erroneously believing the 10/16/2023 O.S.C. was on calendar for 10/26/2023. While Metro notes that Plaintiff does not explain why Metro was not served with the original summons and complaint, this can presumably be explained by the fact that Plaintiff determined that an FAC needed to be filed, as indicated in the filing of the FAC on 10/10/2023, which was before the O.S.C. scheduled for 10/16/2023.

“But the mandatory provision of section 473, subdivision (b), “protects only the innocent client [and] provides no relief for the culpable client who participates in conduct which led to the default....” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1251–1252, 92 Cal.Rptr.2d 322 (Lang ).) If the trial court finds that the moving party's misconduct was a contributing cause of the default, that party “cannot rely on the mandatory relief provision of section 473.” (Lang, at p. 1252, 92 Cal.Rptr.2d 322.)” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399-400.)

Here, Opposition does not argue that Petale’s client was culpable in any fashion, and as indicated in the Petale declaration, Petale admits his own negligence in failing to properly calendar the two O.S.C.s on both occasions. Nothing in Petale’s declaration, nor the Opposition, indicates that the client was culpable.

Thus, Plaintiff satisfied the element that requires an attorney affidavit of fault.

Third, Metro’s argument with respect to CCP § 583.210(b) is equally unavailing. CCP § 583.210(b) states, “Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” (CCP § 583.210(b).) After Metro cites 583.210(b), Metro argues that no proof of service of the summons and complaint was filed by Plaintiff.

This argument is unavailing because Metro cites § 583.210(b) out of context by failing to first cite to § 583.210(a). CCP § 583.210(a) states, “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.”

Therefore, although Plaintiff did not file a proof of service of the summons and complaint, Plaintiff had within 60 days after the time the summons and complaint must be served upon a defendant. As indicated by § 583.210(a), which Metro failed to cite, the summons and complaint must be served within three years after the action is commenced. Here, nowhere close to three years has commenced since the commencement of this action began on 4/4/2023.

(2) Application is in Proper Form
“The Legislature intended the phrase ‘in proper form’ to encompass the mandate that the application for relief under section 473, subdivision (b) be accompanied by the pleading proposed to be filed therein.” (Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, 336-37 citing Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401.)

“[S]ubstantial compliance with that requirement is sufficient.” (Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315, 1324 citing Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

Whether or not this application is in proper form is the element that gives the Court the most concern. The application must be accompanied by the pleading proposed to be filed therein; however, Plaintiff did not attach a copy of the proposed complaint with the motion/application.

For the reasons explained below, the Court finds that this element at the very least can be cured before the hearing, and even potentially at the hearing.

First, the Court notes that Metro did not oppose the motion as to whether or not the application was in proper form.

Second, even if this application is not in proper form at the time it was filed, it appears that under the existing case law, the current defect could be cured at the hearing.

In Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, the Fourth District Court of Appeal reversed the trial court’s decision denying defendants’ motion to vacate the default judgment for defendants failing to include both an affidavit of fault and a proposed answer attached to the motion.

With respect to defendants in Carmel failing to include a proposed answer attached to their motion to vacate default, the Fourth District addressed what was considered to be “substantial compliance” with respect to the application being in “proper form.” The Fourth District concluded that “defendants’ proffer of their proposed answer at the hearing on their motion in the present case substantially complied with the requirements of the mandatory relief provision of section 473, subdivision (b).” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403.)

When the Fourth District explained its reasoning and reviewed the record of the trial court, it stated in relevant part:

Here, the record does not reflect that defendants included a copy of their proposed answer with their motion. But there is evidence defendants prepared a proposed answer when they filed their motion, and made it available at the hearing on the motion. Indeed, some evidence suggests defendants did accompany their motion with a proposed answer.

One of the defendants, Moshen Tavoussi, submitted a declaration in support of the motion, in which he represents: “I have a good and meritorious defense to the complaint as shown by the proposed Answer which is filed herewith.” (Italics added.) Although the record is silent on whether defendants served the proposed answer on Carmel, we note that Carmel did not allege defendants had failed to include a proposed answer in their opposition to the motion. At the hearing on the motion, defendants' counsel protested the court's tentative ruling, representing, “I did attach an answer, your Honor, that was filed.” When the trial court reviewed the file and did not find the proposed answer, defendants' counsel told the court he had a copy of the proposed answer that he had filed with the motion. The trial court did not ask to review the copy, but simply replied, “Okay. The ruling stands.” At our request, defendants have lodged a copy of their proposed answer, reflecting an execution date of October 18, 2007, the same day defendants' counsel executed the motion.

We do not know whether defendants' counsel inadvertently failed to accompany the motion with their proposed answer, or whether the proposed answer simply did not find its way into the court's file. But we perceive no reason why the court could not have reviewed the proposed answer proffered at the hearing and ordered it filed. Carmel did not assert the absence of a proposed answer as a basis for opposing the motion and would have suffered no prejudice if the court allowed defendants to file the answer at the hearing.

(Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402-403.)

Here, Plaintiff does not submit with its application the pleading proposed to be filed therein. Presumably, this would need to be the FAC.

In Petale’s declaration to this motion, Petale states:

I have served this Notice of Motion and Motion for Relief from the Court's Order of Dismissal by U.S. Mail on all defendants in this action. Included in the envelope, serving this notice of Motion, I have placed true and correct copies of the Summons, the First Amended Complaint, the Notice of Case Assignment and the Mandatory ADR Notice so that all Defendants are made aware of the Summons and Complaint pending against them, in the event the Court grant's this Motion and the Defendants are required to answer or otherwise appear herein.

(Decl. Petale ¶6.)

Notably missing from Petale’s application is the proposed FAC to be filed with the application. Although the FAC was not attached to the application, it appears that under Carmel, Plaintiff can cure this defect by lodging the proposed FAC before the scheduled hearing. It also appears that it may be possible under Carmel for Plaintiff to be able to cure the defect by proffering the proposed FAC at the hearing and the Court ordering it filed.

Therefore, if Plaintiff cures the aforementioned defect, it appears that Plaintiff can satisfy the “proper form” requirement under the mandatory relief provision of § 473(b).

Further, the Court notes that Metro did not oppose this motion on the grounds that Plaintiff failed to attach the proposed pleading.

Further, although Petale’s declaration at ¶6 explains that he served the FAC, summons, and other forms, Petale does not provide any proof of service of the FAC and these documents on the Defendants. Further, to the Court’s understanding, this is not an order to show cause re: failure to file proof of service. Therefore, the Court notes that it is not commenting on whether or not Plaintiff has properly executed service with respect to the FAC and accompanying documents.

Discretionary

The Court will not analyze whether or not relief is appropriate under the discretionary relief provision of § 473(b). Under both the mandatory and discretionary relief portions of § 473(b), the application must be accompanied by the proposed pleading. Therefore, the main issue as to this motion is whether or not the application is accompanied by the proposed pleading.

Ultimately, the Court will not examine whether discretionary relief can be granted because it does not appear as if it would be any easier for Plaintiff’s motion to be granted under the discretionary provision of § 473(b). If anything, it appears as if Plaintiff’s motion is more likely to be granted by complying with the mandatory provision of § 473(b); therefore, the Court will not analyze whether granting relief under the discretionary provision has been satisfied.

TENTATIVE RULING
The Court will hear argument.

If the Court is to grant this motion, it appears as if Plaintiff would have to cure the defect of Plaintiff’s application currently not being in proper form. Further, Plaintiff should be prepared to address whether or not under Carmel and existing case law if Plaintiff also has to have served the proposed FAC on all Defendants before or at the hearing in order to cure the defect as to the application being in “proper form.”

Further, Plaintiff is to address the issues of service raised above.

Sanctions
“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. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.” (CCP § 473(b).)

Further, under § 473(c):

(1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

(CCP §473(c)(1)-(2).)

The Court will also hear argument as to the issue of sanctions.