Judge: Edward B. Moreton, Jr, Case: 20SMCV01277, Date: 2024-09-13 Tentative Ruling

Case Number: 20SMCV01277    Hearing Date: September 13, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a dispute between a non-profit organization and its board members.  The Mayme A. Clayton Library and Museum (“MCLM”) was created by Dr. Mayme A. Clayton, a university librarian, to house a collection of African American literature and art.  Defendants Steven Fisher, Lindsay Hughes, and Dr. Ruth Jackson were members MCLM’s Board of Directors. 

Plaintiffs MCLM and Renai V. Clayton, Jr. (“Plaintiffs”) allege that when their terms expired, Defendants continued to hold illegitimate board meetings, refused to set a meeting to elect new board members, refused to acknowledge duly elected board members, continued doing business under false authority, and siphoned funds for their personal use.  Plaintiffs further allege Defendants’ attempt to put the collection at California State University at Dominguez Hills (“CSUDH”) violated the bylaws and purposes of MCLM.

On September 11, 2020, Plaintiffs filed a Complaint against Defendants.  On June 17, 2022, Plaintiffs filed a First Amended Complaint.  On January 19, 2023, Plaintiffs filed the operative Second Amended Complaint (“SAC”). 

On July 27, 2022, Defendants filed a cross-complaint against Plaintiffs and added a new party, Lloyd L. Clayton as Cross-Defendant (collectively “Cross-Defendants”).  The Cross-Complaint sought relief for (1) express indemnity, (2) equitable indemnity, (3) contribution and (4) declaratory relief.  The Cross-Defendants were served with the Cross-Complaint by email to their then-attorney of record.  On February 24, 2023, Cross-Defendants filed a joint answer. 

Due to repeated failures of the Plaintiffs/Cross-Defendants to appear at hearings, submit trial documents and comply with the Court’s Orders, the Court set an Order to Show Case (“OSC”) hearing on March 18, 2024.  At the hearing which was also the date set for trial to start, Plaintiffs/Cross-Defendants did not appear, and accordingly, the Court dismissed Plaintiffs’ SAC, struck Cross-Defendants’ answer, and entered default against Cross-Defendants.    

This hearing is on Plaintiffs/Cross-Defendants’ motion to vacate (1) dismissal of the SAC, (2) order striking Cross-Defendants’ answer, and (3) order entering default against Cross-Defendants.  Cross-Defendants argue that the repeated failures to appear were due to prior counsel’s inexperience and error.  Prior counsel practiced child dependency law and claims she was “unable to get up to speed with the numerous and detailed procedural rules in civil litigation.” 

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.4^th 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.5^th 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.4^th 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 due to Plaintiffs/Cross-Defendants’ failure to prosecute.  Plaintiffs/Cross-Defendants’ repeated failures to appear constitute a failure to prosecute. Accordingly, mandatory relief is not available. 

The Court also concludes discretionary relief is not warranted.  As a general rule, a party who seeks discretionary relief under Code Civ. Proc. § 473 must demonstrate the mistake, inadvertence, or general neglect of their attorney is something other than professional negligence because “the negligence of the attorney...is imputed to his client and may not be offered by the latter as a basis for relief... The client’s redress for inexcusable neglect by counsel is, of course, an action for malpractice.”  (Carroll v. Abbott, 32 Cal.3d at 898 (internal citations omitted).)

In determining whether an attorney’s neglect is excusable, the question is whether the attorney’s conduct is “fairly imputable to the client, i.e., mistakes anyone could have made.”  In contrast, “[c]onduct falling below the professional standard of care” is not excusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 22 Cal.4th 249, 258.) 

            Here, Plaintiffs’ former counsel, Kimberly Hollins, attests she failed to appear at the various court hearings because of her inexperience.  While this failure amounts to professional negligence and does provide a basis for relief. 

CONCLUSION

Based on the foregoing, the Court DENIES Plaintiffs/Cross-Defendants’ motion to set aside dismissal of the SAC, to vacate the striking of their Answer, and to vacate the entry of default on the Cross-Complaint against them. 

IT IS SO ORDERED.

DATED: September 13, 2024                                             ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court