Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a slip and fall case.  On October 19, 2020, Plaintiff Leslie Dugger slipped and fell down the stairs of an apartment building located at 919 5th Avenue, Venice California.  She claims the stairs were wet and slippery.  The operative complaint alleges two claims for negligence and premises liability. 

The original complaint named one defendant – GHC Housing Partners LLC.  Plaintiff subsequently amended her complaint by adding two other defendants, Breezes Del Mar Apartments and PK Management LLC.   

On April 3, 2024, the Court dismissed Defendants GHC Housing Partners LLC and Breezes Del Mar Apartments without prejudice, concluding that PK Management LLC was the correctly named defendant.  On the same date, the Court scheduled an Order to Show Cause (“OSC”) re: sanctions against Plaintiff for failure to file a case management conference (“CMC”) statement for May 3, 2024.  On May 3, 2024, Plaintiff’s counsel did not appear at the OSC, and as a result, the Court dismissed Plaintiff’s Complaint without prejudice.   

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.  Specifically, counsel represents that his failure to appear was due to the sudden, unexpected and unforeseen termination of his secretary which resulted in a calendaring error.  (Zokaeem Decl. ¶¶ 12, 13.)  This purportedly led to Plaintiff’s counsel not submitting a CMC statement and failing to attend the hearing on May 3, 2024.  (Id. ¶13.)     

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.  Accordingly, mandatory relief is available.  Moreover, mandatory relief is available even if counsel’s mistake was inexcusable.  (SJP Limited Partnership, 136 Cal.App.4th at 516–517.)     

Defendant has not demonstrated any unfair prejudice that would result from setting aside the dismissal.  Plaintiff promptly sought relief upon learning of the dismissal, ensuring minimal delay.  Plaintiff filed the motion to set aside within a week 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.)  Plaintiff has 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 Plaintiff’s motion to set aside dismissal.  The action is reinstated.  The Court sets a case management conference on June 28, 2024 at 9:00 a.m.     

 

IT IS SO ORDERED. 

 

DATED: June 6, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court