Judge: Barbara M. Scheper, Case: 19STCV19251, Date: 2022-10-11 Tentative Ruling

Case Number: 19STCV19251    Hearing Date: October 11, 2022    Dept: 30

Dept. 30

Calendar No.

Mitchell vs. The Jankovich Company, et. al., Case No. 19STCV19251

Tentative Ruling re:  Plaintiff’s Motion for Relief

            Plaintiff Sean Mitchell (Plaintiff) moves for discretionary relief pursuant to Code of Civil Procedure Section 473, subd. (b). The motion is granted.

Under section 473, “[t]he 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.” (Code Civ. Proc. § 473, subd. (b).)

“Section 473 is a remedial statute to be ‘applied liberally’ in favor of relief if the opposing party will not suffer prejudice.”  (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24.) “To obtain discretionary relief for attorney error under section 473, subdivision (b), counsel's neglect must be excusable.” (Id. at 27.)

The Court entered judgment in this action in favor of Plaintiff on September 23, 2021. Plaintiff was awarded costs and attorney’s fees to be determined after noticed hearing.

Plaintiff’s Motion for Attorney’s Fees was first set for hearing on March 10, 2022. (Skola Decl. ¶ 3.) The motion was then refiled and set for hearing on June 3, 2022. That motion was denied for lack of adequate notice. Plaintiff again re-filed the motion to be heard on July 18, 2022, which was then moved to August 29, 2022, due to a scheduling error. (Skola Decl. ¶ 3.) The August 29 motion was denied as untimely because it was filed more than 180 days after entry of judgment. (Rules of Court, rule 8.104, subd. (a).)

Plaintiff filed his Memorandum of Costs on July 28, 2022. On September 22, 2022, the Court granted Defendant’s Motion to Tax Costs and taxed Plaintiff’s costs in full on the grounds that the memorandum was filed late. (Rules of Court, rule. 3.1700.)

Plaintiff requests discretionary relief under section 473 based on Plaintiff’s counsel’s error regarding the date of entry of judgment. The motion is unopposed. The Court finds that counsel’s error was excusable under section 473.

The Court grants Plaintiff relief from the August 29, 2022 Order denying Plaintiff’s Motion for Attorney’s Fees, and from the September 22, 2022 Order granting Defendant’s Motion to Tax Costs. Plaintiff is granted leave to file a Motion for Attorney Fees and Memorandum of Costs within 10 days of this order.