Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

Plaintiffs Farhad Moossazadeh and Nahal Moossazadeh entered into an oral contract with Defendants Hershel Mangoli and Hershel Construction Inc. to build Plaintiffs’ home at 908 N. Roxbury Drive, Beverly Hills, California (the “Property”).  Plaintiffs claim Defendants breached the contract by building the home with significant construction defects that violated state and local codes.  Plaintiffs also claim Defendants misrepresented their qualifications, sought payments on “change orders” that were not approved by Plaintiffs, overcharged for work, and misrepresented the monies they were owed to obtain a false mechanic’s lien.  When Plaintiffs refused to pay, Plaintiffs claim Defendants harassed them by threatening physical harm to Plaintiffs and their family members and vandalizing the Property.     

The operative complaint alleges ten claims for (1) breach of contract, (2) fraud, (3) negligence, (4) breach of implied warranties, (5) breach of the implied covenant of good faith and fair dealing, (6) violation of Bus. & Prof. Code §17200 et seq. (Unfair Business Practices), (7) violation of Consumer Legal Remedies Act; (8) civil harassment, (9) trespass, and (10) intentional infliction of emotional distress.   

Trial in this case was set to start on July 1, 2024.  On July 1, no party appeared for the trial.  Accordingly, the Court dismissed the Complaint without prejudice.   

This hearing is on Plaintiffs’ motion to vacate the dismissal.  Plaintiffs seek relief from the dismissal because they claim that counsel was advised by telephonic notice from the courtroom clerk that trial had been continued to July 19, 2024 and, thus, counsel did not appear on the July 1, 2024 trial date.  In fact, by Minute Order dated June 24, 2024, the Court ordered as follows: “the Court is currently engaged in trial and the Non-Jury trial date currently set will trail the current trial.  On the Court’s own motion, the Non-Jury trial scheduled for 6/17/24 is continued to 7/01/94 at 9:00 a.m. in Department 205 at Beverly Hills Courthouse.”  This Order was never amended or withdrawn.  The trial that this case was trailing ended by mistrial on June 28, 2024.  Counsel was mistaken if she believed the trial was not trailing day by day and had, instead been moved to “at least mid-July.” 

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 not due to any of the items listed above.  Counsel declares that he was informed by the courtroom clerk on June 24, 2024 that the ongoing trial that this case was trailing would not end until mid-July 2024 and “everything” was being moved to mid-July since trial in this matter would not start “until at least mid-July.”  (Caldwell Decl. ¶ 4.)  Counsel also states that it was the Court’s practice to continue the trial date periodically by telephonic notice as it did on prior occasions, and therefore, counsel reasonably relied on the call with the clerk to conclude trial would be continued.  (Id. ¶ 6.)  

Counsel was mistaken.  The June 24, 2024 Minute Order stated that “the Court is currently engaged in trial and the Non-Jury trial date currently set will trail the current trial.  On the Court’s own motion, the Non-Jury trial scheduled for 6/17/24 is continued to 7/01/94 at 9:00 a.m. in Department 205 at Beverly Hills Courthouse.”  The June 24, 2024 Order was never amended or withdrawn.  Counsel violated that order when she failed to appear for trial on July 1, 2024.   In any event, mandatory relief is available even if counsel’s mistake was inexcusable.  (SJP Limited Partnership, 136 Cal.App.4th at 516–517.)     

Defendants have not demonstrated any unfair prejudice that would result from setting aside the dismissal.  Indeed, Defendants have not filed an opposition to the motion to set aside.  Plaintiffs promptly sought relief upon learning of the dismissal, ensuring minimal delay.  Plaintiffs filed the motion to set aside within two days of the dismissal.  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.  (Rappleyea, 8 Cal..4th at 980;¿Elston,¿38 Cal.3d at 233.)  Plaintiffs have met this “slight” threshold.         

Given the attorney affidavit of fault and the strong policy favoring a resolution of cases on their merits, the Court grants the motion to set aside dismissal. 

 

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiffs’ motion to set aside dismissal.  The action is reinstated.  The Court sets trial in this case for September 13, 2024 at 9:00 a.m.     

 

IT IS SO ORDERED. 

 

DATED: August 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court