Judge Barbara M. Scheper, Case Number: 23STCP00787, Date: 2023-12-20 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCP00787, Date: 2023-12-20 Tentative Ruling

Case Number: 23STCP00787 Hearing Date: December 20, 2023 Dept: 30

Dept. 30

Calendar No. 10

Mercury Insurance Company vs. DUSABAN, et. al., Case No. 23STCP00787

Tentative Ruling re: Respondent’s Motion to Set Aside Dismissal

Respondent Wilma S. Dusaban (Respondent) moves for relief from the Court’s May 16, 2023 Order granting Petitioner Mercury Insurance Company’s (Petitioner) motion to dismiss Respondent’s under-insured motorist claim. The motion is denied.

Under Code of Civil Procedure section 473, subdivision (b), “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 purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 695.)

On May 16, 2023, the Court granted Petitioner’s motion to dismiss and ordered dismissal of Respondent’s arbitration proceedings, on the basis that arbitration of Respondent’s underinsured motorist claim was not concluded “[w]ithin five years from the institution of the arbitration proceeding.” (Ins. Code § 11580.2, subd. (i)(2).) The Court found that Respondent initiated arbitration proceedings on October 13, 2016, and that Respondent’s failure to comply was not excusable due to estoppel, waiver, or impracticability. (See Ins. Code § 11580.2, subd. (i)(3).)

Respondent now moves for relief under section 473 based on her counsel’s mistake, inadvertence, surprise, or neglect. In counsel’s supporting declaration, counsel states that he mistakenly did not believe that Petitioner would invoke the 5-year limitations period, as arbitration proceedings were progressing and Petitioner did not previously raise the issue. (Frandsen Decl. ¶ 11.) Counsel states that until January 10, 2023, he was “relying on the assurances from the Insurance Company regarding the selection of an arbitrator that the arbitration would move forward, and, therefore, the Insurance Company would make no claim that the Insurance Company would attempt to invoke the 5-year limitations period of Section 11580.2.” (Frandsen Decl. ¶ 11.)

Neither discretionary nor mandatory relief are available in these circumstances. “The purpose of the statute was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. There is no evidence that the amendment was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal. [Citation.] In other words, the litigants who lose their day in court are those parties that fail to respond to a dismissal motion because of an attorney's error.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1001.)

In Wilcox v. Ford (1988) 206 Cal.App.3d 1170, the court found that relief under section 473 was generally not available for dismissals based on a plaintiff’s failure to bring an action to trial within five years under Code Civ. Proc. § 583.310: “Section 473 enables a plaintiff who has failed to oppose a motion to dismiss through mistake, inadvertence, surprise or excusable neglect to file a belated opposition to such motion. Section 473 does not provide additional grounds for relief from failure to bring an action to trial within five years. The cases reflect that this has always been the accepted relationship between section 473 and the various statutes permitting dismissal for lack of prosecution.” (Id. at 1176.) “[S]ection 473 does not in and of itself provide grounds for denial of a motion to dismiss, but only allows setting aside the order of dismissal to reach the merits of the motion.” (Id. at 1177.) The court sought to avoid “expanding the exceptions to the five-year statute to include section 473's grounds of mistake, inadvertence, surprise or excusable neglect as reasons to excuse a plaintiff's compliance with the five-year statute.” (Id. at 1179.) Under both CCP § 583.310 and Ins. Code § 11580.2, subd. (i)(2), the five-year time limit may be extended based on impossibility, impracticality, or futility. (Id. at 1174, Ins. Code § 11580.2, subd. (i)(3).)

Here, Respondent opposed the prior motion to dismiss and unsuccessfully argued that estoppel applied to excuse the failure to complete arbitration. Respondent did not “lose [her] day in court” due to counsel’s error, and so Section 473 relief is inappropriate. Furthermore, the reasoning in Wilcox applies here as well. Because section 473 “only allows setting aside the order of dismissal to reach the merits of the motion [to dismiss]” (Wilcox at 1177) and the prior ruling already considered the merits of Respondent’s opposition, Section 473 does not provide Respondent grounds for relief.