Judge: Ashfaq G. Chowdhury, Case: 23GDCV01608, Date: 2024-11-07 Tentative Ruling
Case Number: 23GDCV01608 Hearing Date: November 7, 2024 Dept: E
Hearing Date: 11/7/2024 – 8:30am
Case No. 23GDCV01608
Trial Date: UNSET
Case Name: GUISEPPE FIORELLA, an individual; v. CITY OF GLENDALE, a public
entity; and DOES 1-50 inclusive
[TENTATIVE
RULING– MOTION TO SET ASIDE/VACATE DISMISSAL]
RELIEF REQUESTED¿
Plaintiff,
Guiseppe Fiorella, moves to vacate the dismissal of Plaintiff’s Complaint.
BACKGROUND
Plaintiff,
Guiseppe Fiorella, filed the instant action on 7/28/2023 against Defendant,
City of Glendale. Plaintiff’s Complaint lists one cause of action for “Public
Entity Liability Dangerous Condition of Public Property.” Plaintiff’s Complaint
arises from allegations that Plaintiff tripped and fell on a sidewalk that was
not properly maintained by the City of Glendale. (See Compl. ¶ 8.)
On
1/17/2024, the Court held a hearing re: Order to Show Cause re: Failure to File
Proof of Service. Plaintiff’s counsel appeared, but Defendant’s counsel did
not, and the Case Management Conference was continued to 3/11/2024. (See
1/17/2024 Min. Order.)
On
3/11/2024, the Case Management Conference was held. Plaintiff’s counsel
appeared, but Defendant’s counsel did not, and an Order to Show Cause re:
Dismissal (Settlement) was scheduled for 5/13/2024. Further, at the 3/11/2024
hearing, the Case Management Conference was continued to 5/13/2024. (See
3/11/2024 Min. Order.)
On
5/13/2024 at the Order to Show Cause re: Dismissal (Settlement) and Case
Management Conference, no appearances were made for Plaintiff or Defendant.
Therefore, being no appearances, the Court dismissed the Complaint filed by
Guiseppe Fiorella on 5/13/2024. (See 5/13/2024 Min. Order.)
Plaintiff,
Guiseppe Fiorella, now seeks to vacate the dismissal of Plaintiff’s Complaint.
PROCEDURAL
ANALYSIS
Moving Party: Plaintiff, Guiseppe Fiorella
Responding Party: No Opposition by Defendant, City of
Glendale
Moving Papers: Notice/Motion; Declaration of Arno H.
Keshishian [No proof of service attached]; Proposed Order [No proof of service
attached]
Opposition Papers: No Opposition
Reply Papers: No Reply
Proof of
Service Timely Filed (CRC Rule 3.1300(c)): No.
“Proof of service of
the moving papers must be filed no later than five court days before the time
appointed for the hearing.” (CRC, Rule 3.1300(c).)
Here, the proof of
service for the notice/motion was timely filed. However, Plaintiff also filed a
Declaration of Arno H. Keshishian and a proposed order with the motion. Both
the Keshishian Declaration and the proposed order do not have proofs of
service.
16/21 Court Days Lapsed (CCP § 1005(b)): Yes/No. Notice is okay with
respect to the notice/motion; however, the Keshishian Declaration and the
proposed order do not have proofs of service to even determine if they were
served with the appropriate notice.
Proper Address (CCP § 1013, § 1013a, § 1013b): No – The Court does not have an address on
eCourt for Defendant or Defendant’s counsel. This is likely because Defendant
never appeared, and the action was dismissed before Plaintiff ever filed a
proof of service for the Complaint.
No matter what, this
notice/motion [the only document filed with a proof of service] was served via mail
to:
City of Glendale
140 N. Isabel Street
Glendale, CA
The Court notes that whatever Defendant’s proper mailing address is,
Plaintiff’s proof of service for the notice/motion does not list a zip code
with the address that Defendant was allegedly served this notice/motion at. Not
to mention, the Keshishian Declaration and the Proposed Order did not contain a
proof of service.
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.” **699 (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 *400 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.)
SUBSTANTIVE ANALYSIS
Mandatory Relief
Plaintiff moves for relief both under the
discretionary relief portion of CCP § 473(b) and the mandatory relief portion
of 473(b).
As a preliminary matter, the Court notes that
affording relief under the mandatory provision appears to provide an easier
hurdle for a movant to leap than the discretionary provision. This appears to
be the case because the mandatory relief provision allows for relief even when
the attorney error is inexcusable. (See Jiminez v. Chavez (2023) 97
Cal.App.5th 50, 57-58; “[A] party is entitled to mandatory relief under section
473(b), even when the attorney error is inexcusable, so long as the attorney
affidavit of fault shows the error was the fault of the attorney rather than
the client.” Id.)
Further, meeting the burden for relief under the
mandatory provision appears easier in the sense that the mandatory provision
does not contain language that the application must be made within a reasonable
time. “An application under the discretionary relief provision ‘shall be made
within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.’” (Jiminez v. Chavez (2023)
97 Cal.App.5th 50, 58.) “Unlike the discretionary ground for relief, a motion based
on attorney fault need not show diligence in seeking relief. The motion is
timely filed within six months of the entry of the default judgment or
dismissal.” (Dollase v. Wanu Water, Inc. (2023) 93 Cal.App.5th 1315,
1323 citing Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147.)
“[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.)
Here, the Court entered dismissal against Plaintiff on
5/13/2024. Therefore, mandatory relief can be granted if Plaintiff met the
three conditions under the mandatory relief provision of CCP § 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.)
Here, dismissal was entered against Plaintiff on
5/13/2024. Plaintiff filed the notice/motion for relief on 10/2/2024.
Therefore, Plaintiff filed this motion timely since application for relief was
made no more than six months after entry of dismissal.
(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).)
Here, the
declaration of Arno H. Keshishian, who is attorney for Plaintiff, stated that
Plaintiff’s counsel mistakenly calendared the 5/13/2024 Case Management
Conference and Order to Show Cause for 9/13/2024 instead of 5/13/2024. (See
Keshishian Decl. ¶ 8.)
Keshishian states
that it was not until September 12, 2024 when counsel tried to reserve a log in
for LA Court Connect that counsel realized the clerical error. (See Keshishian
Decl. ¶ 9.)
Keshishian also
stated, “The calendaring mistake is the sole responsibility of Plaintiffs'
counsel's office and staff and is in no way attributable to Plaintiff or his
unwillingness to prosecute this matter.” (Keshishian Decl. ¶ 13.)
(2) Application is
in Proper Form
“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.)
Here, the Court will hear argument. It does not appear
as if a proposed pleading is sought to be filed with this motion.
TENTATIVE RULING
The
Court will hear argument.
Of particular importance, the Court notes how one of
the requirements for relief under the mandatory provision of CCP § 473(b) is the
attorney affidavit of fault. Notably here, the Keshishian Declaration did not
contain a proof of service. This appears to be a fatal defect for Plaintiff’s
motion. Further, Plaintiff should be prepared to address all the additional
service issues that the Court pointed out in its “Procedural Analysis” section.
Plaintiff should also be prepared to address whether or not this application
was in proper form.