Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Alison Weinsweig 

 

RESPONDING PARTY: Defendant Ramin Kohanim 

BACKGROUND 

This is an unlawful detainer action.  Plaintiff Alison Weinweig owns the property located at 10590 Wilshire Blvd, Unit #1802, Los Angeles, California.  Plaintiff rented the unit to Defendant Ramin Kohanim.  Defendant failed to pay rent, and Plaintiff instituted an unlawful detainer action.   

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  The Court ordered dismissal after Plaintiff’s counsel failed to appear in person for a trial after a demand for trial was filed with the Court.  Plaintiff made an oral request to continue the trial for three weeks, which was denied.  The Court then dismissed the action for failure to prosecute on January 10, 2023.  Plaintiff argues that her motion to vacate should be granted under Code Civ. Proc. 473(b) due to her attorney’s excusable neglect, in noticing the case for a court trial when discovery had been propounded and the parties were not ready to proceed to trial.  No opposition has been filed.       

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 

Plaintiff argues that the Court should grant both mandatory and discretionary relief to vacate the order of dismissal.  The Court denies the request for mandatory relief but grants the request for discretionary relief.     

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

As this case involves a failure to prosecute, mandatory relief is not available.  (See, e.g., Peltier v. McCloud River R.R. County. (1995) 34 Cal.App.4th 1809 (mandatory relief not applicable to dismissal for failure to prosecute); Clark v. O’Connor, 2020 Cal. Super. LEXIS 3302 at *1-*2 (mandatory relief not available where counsel failed to serve summons and complaint and did not appear for a final status conference and trial).)  

The court does, however, have discretion to vacate the dismissal under the discretionary provisions of CCP § 473(b).  To grant relief under the discretionary relief provision of § 473, the moving party must show the dismissal was entered as a result of mistake, surprise, inadvertence, or excusable neglect.  

The Court concludes Plaintiff has met the requirements for discretionary relief.  Plaintiff filed the motion on January 31, 2023 within six months after entry of judgment on January 10, 2023.  Her attorney’s declaration avers that counsel failed to notify his staff that discovery had been propounded and a request to set the case for trial should be withheld.  (Brennan Decl. ¶ 3.)  Counsel has also shown he has been actively prosecuting the case, including engaging in settlement discussions with Defendant and conferring with Defendant about the discovery that was propounded.  (Brennan Decl. ¶ 4.)  The Court, therefore, exercises its discretion to vacate the dismissal.  (Silvana Moretti Vieira Palmieri v. City of Beverly Hills, 2022 Cal. Super. LEXIS 62440 at *3-*4 (denying mandatory relief from dismissal for failure to prosecute but granting request for discretionary relief based on attorney declaration that the plaintiff intends to prosecute the case and the parties were engaged in settlement negotiations); Valencia v. Delorean Dezmarr Beamon, 2021 Cal. Super. LEXIS 71212 at *3 (denying mandatory relief from dismissal for failure to prosecute but granting request for discretionary relief based on attorney declaration that counsel’s former secretary inadvertently did not properly calendar the date for the OSC); Sook Choe Seo v. Bowen, 2021 Cal. Super. LEXIS 134836 at *3 (denying mandatory relief from dismissal for failure to prosecute but granting request for discretionary relief based on attorney declaration that he failed to properly calendar the trial date). 

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 March 23, 2023 at 9:00 a.m. 

 

IT IS SO ORDERED. 

 

DATED: March 3, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court