Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Northwestern Engineering Company 

 

RESPONDING PARTY: Defendant Joseph Shemaria 

 

BACKGROUND 

This is a dispute between neighbors.  This matter is one of two lawsuits between Northwestern Engineering Company (“NWE”) and Joseph Shemaria (“Shemaria”).  The first action was filed on November 1, 2017 under case number SC128312 (“Shemaria I”), and the second action was filed on May 24, 2022 under the above-captioned case number (“Shemaria II”).   

Shemaria I arose out of NWE’s claim to a prescriptive easement in a narrow walkway running the length between NWE and Shemaria’s neighboring properties in Venice Beach.  Shemaria II, the instant case, involves NWE’s claim to a prescriptive easement to a right of way over Shemaria’s rear parking lot for dumpster access and ingress/egress to the same property. 

On January 10, 2023, the parties appeared for the first day of trial in Shemaria I and reached what they believed to be a global settlement of the claims at issue in both Shemaria I and Shemaria II.  (Crump Decl. ¶4.)  As part of the settlement of Shemaria II, the parties agreed they would determine a practical method of removing or modifying a fence that Shemaria had built along the length of his property so that NWE could access its rear dumpster and the adjoining road.  (Id. ¶5.)        

Between January and July 2023, the parties circulated settlement drafts which attempted to memorialize the terms of their January 10, 2023 agreement.  (Id. ¶6.)  Two matters delayed the parties’ progress on finalizing the terms.  First, NWE’s lead counsel suffered a traumatic car accident resulting in the fracture of a vertebrae in his neck and causing his absence from the office for several months.  (Id. ¶7.)  Second, the parties struggled to reach a consensus on how to address the fence at issue in Shemaria II.  (Id.)   

NWE appeared before the Court, through its second chair counsel, Stephen Crump, on March 14, 2023 and May 4, 2023 at two OSCs Re: Dismissal to inform the Court of the status of settlement efforts.  (Id. ¶8.)  On May 4, the Court continued the OSC Re: Dismissal to July 7, 2023.  (Id.)  Though NWE’s counsel provided Shemaria with notice of the new OSC date later that day, it was recorded on NWE counsel’s own calendars as July 17, 2023.  (Id. ¶¶ 8-9.)  As a result, NWE did not appear at the July 7 OSC Re: Dismissal, resulting in this Court’s dismissal of Shemaria II.  (Id. ¶9.)                       

Hopeful that the parties would still come to terms on the matters at issue in Shemaria II, NWE did not immediately move this Court to set aside the dismissal.  However, it is now clear the parties may need to parse the claims at issue in Shemarai II from the overall settlement and litigate them.    

This hearing is on NWE’s motion to vacate an order of dismissal of its Complaint.  NWE argues that its motion to vacate should be granted under Code Civ. Proc. 473(b) due to its attorney’s excusable neglect, in failing to properly calendar the date of the OSC hearing.  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 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.)  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.) 

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 

The Court first addresses whether mandatory relief is available for a motion to vacate an order of dismissal where counsel fails to appear for an OSC.  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.)   

This case does not fall within any of the above types of dismissals, and therefore, mandatory relief is available.  The Court grants mandatory relief based on Plaintiff’s counsel’s sworn affidavit that the failure to appear for the OSC was the product of his calendaring mistake.  (Crump Decl. ¶9.)  The failure to appear is not part of a larger pattern of carelessness.  It appears to be an isolated mistake in an otherwise diligent representation of NWE.  Further, NWE has acted diligently in filing this motion less than a month after the Court’s order of dismissal and would have done so sooner had it been clear the parties would not be able to settle the issues in Shemaria II.   

The granting of this motion will not result in prejudice to Shemaria.  There was no trial date set in Shemaria II, and both parties will have an equal and ample opportunity to conduct discovery and otherwise litigate the dispute on the merits.  (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821 (since the law strongly favors trial and disposition on the merits, there is no prejudice in having to go back and try the case on the merits).).   

On these facts and given the liberal policy favoring a resolution of cases on their merits, the Court grants the motion to set aside dismissal.  (Communidad En Accion v. L.A. City Council (2013) 219 Cal.App.4th 1116, 1134-1135 (reversing trial court’s dismissal of a CEQA action after plaintiff’s counsel made an isolated calendaring mistake).)     

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.  The Court sets a case management conference on October 5, 2023 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: September 12, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court