Judge: Curtis A. Kin, Case: 22STCP00773, Date: 2024-09-17 Tentative Ruling

Case Number: 22STCP00773    Hearing Date: September 17, 2024    Dept: 86

MOTION TO SET ASIDE JUDGMENT (CCP § 473)

Date:               9/17/24 (1:30 PM) 

Case:                           Guillermo Martinez v. Board of Civil Service Commissioners of the City of Los Angeles (22STCP00773) 

TENTATIVE RULING:

Petitioner Guillermo Martinez’s Motion to Set Aside Judgment is DENIED.

Petitioner moves to set aside the judgment entered against him on the grounds of attorney fault. On 2/27/24, the Court denied petitioner’s Petition for Writ of Mandate because petitioner had not filed an opening brief or presented an administrative record and accordingly failed to meet his burden to demonstrate entitlement to a writ of mandate. (2/27/24 Ruling.) Petitioner’s counsel avers that he failed to file the opening brief because he neglected to properly monitor his calendar. (Horvath Decl. ¶¶ 2, 3.)

“[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 … resulting … 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).)

However, “[m]andatory relief [under CCP § 473(b)] is not available after a…judgment after trial, which involve actual litigation and adjudication on the merits.” (Huens v. Tatum (1997) 52 Cal.App.4th 259, 263, citing Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 990.) A hearing on a petition for writ of administrative mandate, which petitioner sought (see First Amended Petition ¶¶ 14, 16; Memo. at 7:2-4), is a trial of question of fact. (Giuffre v. Sparks (1999) 76 Cal.App.4th 1322, 1326, fn. 3.) Here, after the hearing/trial on 2/27/24, the Court issued a ruling indicating the petitioner failed to meet his burden to obtain relief and entered judgment against petitioner and in favor of respondent. (3/25/24 Judgment.)

Whatever reason petitioner’s counsel asserts for having failed to file the opening brief, the time to adjudicate the merits was during the hearing/trial.  The 2/27/23 writs trial took place after three continuances and proper notice to petitioner. (4/10/23 Minute Order; 6/9/23 Minute Order; 10/10/23 Minute Order.) After petitioner failed to file an opening brief and submit the administrative record, the Court denied the writ petition on the merits, finding that petitioner failed to meet his burden to establish any entitlement to issuance of a writ of mandate. Because judgment has been entered after trial, petitioner cannot rely on an attorney affidavit of fault to set aside the judgment.  (Nocetti v. Whorton (2014) 224 Cal.App.4th 1062 [no mandatory relief available under 473(b) where plaintiffs did not appear for trial due to their attorney’s miscalendaring and trial court reviewed file before entering $0 judgment in favor defendants]; Vandermoon v. Sanwong (2006) 142 Cal.App.4th [473(b) relief not available for judgment entered after trial conducted with party absent due to their attorney’s failure to inform them of trial date].)

The motion is DENIED.