Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a personal injury case.  Plaintiff Carmen Aguilar was a patron of Defendant Bluestone Lane Coffee.  Aguilar was sitting at one of Defendant’s patio tables, when the large umbrella attached to the table fell over and hit her head.   

Defendant was served but never answered.  The Court set an Order to Show Case (“OSC”) re Default for June 9, 2023.  Plaintiff’s counsel told his assistant to calendar the June 9, 2023 OSC.  It was calendared but his assistant forgot to set alarms to remind counsel as to the date of the hearing.  As a result, Plaintiff’s counsel failed to appear for the June 9, 2023 OSC, and the Court dismissed Plaintiff’s case without prejudice due to the non-appearance by counsel.   

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  Plaintiff argues that her motion to vacate should be granted under Code Civ. Proc. 473(b) due to her attorney’s neglect in properly calendaring the hearing.  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 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 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.)  Under the mandatory relief provision, the court is required to grant relief if the attorney admits neglect, even if the neglect was inexcusable.  (Metropolitan Service Corp. v. Casa de Palms Ltd. (1995) 31 Cal.App.4th 1481, 1487; Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) 

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 a plaintiff 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.  (Bina Decl. ¶6.)  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 Plaintiff.  Further, Plaintiff has acted diligently in filing this motion within the six-month statutory time set forth by Code Civ. Proc. § 473(b).   

On these facts and given the liberal policy favoring a resolution of cases on their merits and the absence of an opposition to the motion, 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 Court reinstates the action and sets a case management conference for February 27, 2024 at 9:00 a.m.      

 

IT IS SO ORDERED. 

 

DATED: February 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court