Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Tracie Calfee Dalton 

 

RESPONDING PARTY: Cross Defendants Pacific Coast Developers and Schick Geotechnical, Inc.  

 

BACKGROUND 

This is a construction defect case.  Plaintiff Tracie Calfee Dalton owns a home located at 1619 San Ysidro Drive, Beverly Hills, California (the “Property”).  She purchased the Property from Defendants Pamela Becker and Ocean Santa Barbara Investments, LLC.  She alleges that when the Property was delivered to her, it was defective and unfit for its intended purposes.  She alleges numerous and extensive defects, including water intrusion and soil erosion issues, structural problems, plumbing and sewer defects, electrical system problems, and fire protection issues.  The operative complaint alleges claims for (1) violation of building standards as set forth in Cal. Civ. Code §896, (2) breach of contract, (3) breach of express warranty, and (4) breach of the implied warranty of merchantability.   

Defendants cross-claimed against the project manager and subcontractors, including as relevant here, Defendants/Cross-Defendants Pacific Coast Developers and Schick Geotechnical, Inc.  Defendants allege that should they be found to have committed a tort, violated a statute, breached any warranty, or be found liable for any other wrongdoing with respect to the allegations of the Complaint, their actions or omissions were passive and secondary, while those of Cross-Defendants were active, primary and/or superseding.  Defendants’ cross complaint alleges claims for (1) equitable indemnity, (2) breach of contract against the project manager, (3) breach of contract against the subcontractor defendants, and (4) negligence.   

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  The Court ordered dismissal after Plaintiff’s counsel failed to appear for three hearings.  Plaintiff argues that her motion to vacate should be granted under Code Civ. Proc. 473(b) due to her attorney’s excusable neglect, in failing to properly calendar the three conferences.  Defendants/Cross-Defendants Pacific Coast Developers and Schick Geotechnical, Inc. oppose the motion.       

TIMELINESS   

Cross-Defendants Pacific Coast Developers and Schick Geotechnical, Inc. ask the Court to deny Plaintiff’s motion to vacate dismissal on grounds of timeliness.  Cross-Defendants contend they were not timely served with the motion.  The Court notes that Plaintiff has re-noticed the hearing for February 28, 2023, alleviating any prejudice Cross-Defendants may have suffered.  Accordingly, the Court will consider Plaintiff’s motion on its merits.      

LEGAL STANDARD 

Pursuant to Code Civ. Proc. §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Id.)   

An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) 

“[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court[.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.) 

DISCUSSION 

Plaintiff argues that the Court should grant both mandatory and discretionary relief to vacate the order of dismissal.  Because the Court concludes mandatory relief is available, it does not address whether discretionary relief is also appropriate.   

The Court first addresses whether mandatory relief is available for a motion to vacate an order of dismissal.  The mandatory relief provision of §473(b) refers to both “default judgment or dismissal”.  The inclusion of “dismissal” by the Legislature was intended to “put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.”  (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 175.).   

However, although the language of the mandatory provision, on its face, affords relief from unspecified ‘dismissals’ caused by attorney neglect, “our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ to undo dismissals of civil cases.”  (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967.)  Courts have construed the provision as reaching only dismissals that are “procedurally equivalent to a default.”  (Jackson, 32 Cal.App.4th at 174.)  Dismissals that are sufficiently distinct from a default, thereby falling outside the scope of the mandatory provision, include “dismissals for failure to prosecute, dismissals for failure to serve a complaint within three years, dismissals based on running of the statute of limitations and voluntary dismissals entered pursuant to settlement.” (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.)   

The Court next considers whether this case involves a failure to prosecute, falling outside the scope of mandatory relief.  The Court concludes it is not.  Aside from the three failures to appear, Plaintiff has been diligently prosecuting the case.  She has served the summons and complaint on Defendants.  She filed Doe amendments once she received a list of the subcontractors involved in the construction of her home.  She has attended two mediations to informally resolve her suit.  And she has retained experts who have conducted testing at the Property.  This case is unlike those where a failure to prosecute was found.  (Cf. Clark v. O’Connor, 2020 Cal. Super. LEXIS 3302 at *1-*2 (mandatory relief not available where counsel failed to serve summons and complaint and did not appear for a final status conference and trial).)  Accordingly, the Court concludes mandatory relief is available here.  (Cf. Prima Fin. Group v. Pitalicious Inc., 2017 Cal. Super. LEXIS 77980 at *2-*3 (granting mandatory relief from dismissal where counsel failed to appear at hearing due to illness).) 

The Court next addresses whether Plaintiff has met the requirements for mandatory relief.  The Court concludes she has.  Plaintiff filed the motion on January 18, 2023 within six months after entry of judgment on December 16, 2023.  Her attorney’s declaration also avers that the failure to appear for three conferences was due to attorney mistake or neglect.  Counsel attests he failed to appear for the first hearing (on August 16, 2022) due to a calendaring error which occurred during a transition of administrative staff assisting him in the handling of this matter.  (Plesset ¶¶ 15-16.)  Counsel avers he failed to appear for the second hearing (on December 6, 2022) because he failed to “confirm the date with [his] legal assistant, and thus the hearing never made it on [his] calendar.”  (Plessett ¶18.)  Counsel failed to calendar the date, even though he provided notice of this hearing date to other parties in the case.  (Id.)  Finally, counsel attests he failed to appear at the last hearing (on December 16, 2022) because he was not served with the notice, although his colleague was served and forwarded the notice to him in sufficient time for him to attend the conference.  (Plessett ¶20-21)   

While these combined errors are inexcusable, the mandatory relief provisions require only a sworn declaration from counsel attesting to his or her “mistake, inadvertence, surprise or neglect.”  No showing that the neglect was excusable is required.  (Avila v. Chua (1997) 57 Cal.App.4th 860, 868-869 (“To obtain relief under the mandatory provisions, plaintiffs’ counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable.  No reason need be given for the existence of one of these circumstances.  Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.”); (Nmh Broadway v. Carrillo, 2017 Cal. Super. LEXIS 57900 at *2-*3 (mandatory relief granted even though counsel’s calendaring errors and other mistakes were inexcusable).)  Accordingly, the Court will vacate the order of dismissal pursuant to the mandatory relief provisions of Code Civ. Proc. §473(b).  

While the Court vacates the order for dismissal, Plaintiff must still respond to the Order to Show Cause why counsel has repeatedly failed to appear.  (Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1565-1566 (where mandatory relief is granted, plaintiff must still respond to the underlying motion to dismiss).)  The hearing on the order to show cause why sanctions shouldn’t be imposed it set for March 15, 2023 at 9:00 a.m. The Court grants Plaintiff leave to file her proposed response to the OSC. That response must be filed and served by email by March 7, 2023. Any response from defendants must be filed and served by email, with a courtesy copy to the court at Bev205@lacourt.org, by March 13, 2023. At that hearing the Court will consider whether sanctions are warranted.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to vacate order of dismissal under Code Civ. Proc. 473(b).  The action is reinstated.   

 

IT IS SO ORDERED. 

 

DATED: February 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court