Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a landlord-tentant dispute.  Plaintiff Daniel Glauberg is a tenant at Defendant Windward Village Apartments.  Defendants Cirrus Asset Management, Inc. and Richard Lopata are alleged to own, operate and/or manage the apartment complex.  Plaintiff claims there was a bed bug infestation in his apartment, and Defendants did nothing to resolve the infestation, even after Plaintiff complained.  Plaintiff claims he suffered physical and emotional injuries. 

On June 30, 2023, the Court dismissed the action without prejudice for failure to appear at the case management conference and order to show cause (“OSC”) hearings.   

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff seeks mandatory relief due to her counsel’s mistake, inadvertence, surprise or neglect.  Plaintiff argues that her counsel did not properly calendar the hearing and accordingly, failed to appear at the case management conference (“CMC”) and to file necessary papers in connection with the conference and OSC.  No opposition was 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.) 

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 Court first considers whether Plaintiff’s motion to vacate is timely.  The court’s order to dismiss was on June 30, 2023.  Plaintiff was required to file his motion within six months or by December 30, 2023.  (Code Civ. Proc. § 473(b).)  Plaintiff filed his motion on December 27, 2023.  Accordingly, Plaintiff’s motion is timely. 

The Court next considers whether mandatory relief is available.  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.  Plaintiff’s counsel avers that due to a calendaring error, he failed to appear at the CMC.  (Janfaza Decl. ¶ 5.)  This calendaring error seems to be an isolated incident and not part of a pattern of carelessness.  In any event, a party’s motion for mandatory relief only requires that counsel attest to their mistake, inadvertence, surprise, or neglect, and not the reasons for it. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)  

Therefore, relief is mandatory, and the Court lacks the discretion to refuse relief. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226¿(“If the prerequisites for the application of the mandatory relief provision of¿section 473, subdivision (b)¿exist, the trial court does not have discretion to refuse relief.”) 

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to vacate dismissal under Code Civ. Proc. §473(b).  The action is reinstated.  The Court sets a case management conference for March 12, 2024 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: February 2, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court