Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff Almont BH Partners LLC entered into a written commercial lease (“Lease”) with Defendant Morgan and Marcus Inc. dba Morgan & Co.  Plaintiff alleges Defendant failed to pay rent due under the Lease.  The original complaint was only against Morgan and Marcus Inc.  Plaintiff later added Marcus Rosner as a defendant.   

 Rosner then filed a Cross-Complaint against Cross-Defendants Paolo Mazoli and Kia Zoghi.  Rosner alleges these Cross-Defendants agreed to defend, indemnify and hold him harmless against any claim, cost, expense, loss or liability (including attorneys’ fees) attributable to claims such as those made by Plaintiff under the Lease.   

On December 8, 2023, a default was entered against Zoghi.  On February 7, 2024, a default was entered against Manzoli.  Rosner submitted a default package and declarations on May 16, 2024.   

On May 20, 2024, the Court set a status conference for July 5, 2024 on the entry of default judgment on the Cross-Complaint.  Rosner’s counsel was present at the hearing and received notice of the conference date.  On July 5, 2024, the Court held a status conference on the entry of default judgment on the Cross-Complaint.  There were no appearances.  The Court set an Order to Show Cause (“OSC”) for dismissal of the Cross-Complaint for August 19, 2024.  Rosner did not appear at the OSC.  Accordingly, the Court dismissed the Cross-Complaint without prejudice.    

This hearing is on Rosner’s motion to vacate the dismissal of the Cross-Complaint and request to enter default judgment against Cross-Defendants.  Rosner’s counsel maintains that he did not receive notice of the OSC for August 19, 2024 because it was sent to counsel’s old address in Woodland Hills, and while mail is being forwarded from the old address, it was never received at his new office address in Calabasas.  There was no opposition filed as of the posting of this tentative ruling.     

LEGAL STANDARD 

Pursuant to Code Civ. Proc. §473(b), both discretionary and mandatory relief are 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.)  The purpose of the attorney affidavit provision is to “relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.”  (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.)  Mandatory relief is available even if counsel’s neglect was inexcusable.  (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.)   

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.)  Any doubt in applying section 473, subdivision (b), must be resolved in favor of the party seeking relief.  (Bonzer v. City of Huntington Park (1993) 20 Cal. App. 4th 1474,¿1477-1478.)   

Where relief is promptly sought and no prejudice would be done to the opposing party, only very slight evidence is required to justify the setting¿aside of a default.  For this reason, orders denying relief under section 473 are carefully scrutinized on appeal. (¿Rappleyea v. Campbell¿(1994) 8 Cal..4th 975, 980;¿Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 233.) 

DISCUSSION 

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.)   

Here, the dismissal was for failure to prosecute, namely that Rosner failed to appear at two separate hearings.  Accordingly, Rosner is not entitled to mandatory relief.         

The Court further concludes Rosner is not entitled to discretionary relief.  Discretionary relief is available where there is mistake, inadvertence, surprise or neglect.  (Code of Civ. Proc. § 473(b).)  The mistake, inadvertence, surprise, or neglect¿must¿be reasonable¿to justify discretionary relief.¿ (Conway v. Municipal Court¿(1980) 107 Cal.App.3d 1009, 1017; see¿Carroll v. Abbott Laboratories, Inc.¿(1982) 32 Cal.3d 892, 898.)  Moreover, the mistake, inadvertence, surprise or neglect must be the cause of the default.  (Code of Civ. Proc. § 473(b).)   

Here, while Rosner explains that he missed the August conference because notice of the OSC was not sent to his new office, he fails to explain why he missed the July conference.  Had he attended the July conference, he would have received notice of the August conference.  So the failure to appear at the August OSC was not necessarily the result of the failure to receive notice at the new office address, but was a product of not attending the July conference, for which there is no reasonable explanation given.   

CONCLUSION 

Based on the foregoing, the Court DENIES Cross-Complainant’s motion to set aside dismissal of the Cross-Complaint.   

 

IT IS SO ORDERED. 

 

DATED: October 16, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court