Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Kena Huete 

 

RESPONDING PARTY: Defendant Teddy Marquez 

BACKGROUND 

This case arises out of a car accident.  Plaintiff Kena Huete alleges Defendant Teddy Marquez suddenly and negligently collided with her car near a highway off-ramp.  The collision resulted in serious injuries to Plaintiff.  The operative complaint alleges claims for “motor vehicle” and negligence. 

On August 3, 2023, the Court held an OSC and dismissed the case for failure to file a proof of service.  This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff argues that the dismissal was the result of a clerical error in her counsel’s office, which erroneously noted that service had already been made.  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 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 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 his failure to serve Defendant was due to his office’s mistake or inadvertence in marking the file as properly served when service had not yet been effected.  (Gasway Decl. ¶3.)   

Prior to the clerical error, Plaintiff was diligently attempting to serve Defendant.  From December 1, 2022 through March 24, 2023, counsel made numerous attempts to have the Defendant served at the address listed on his driver’s license.  When the process server was not able to find Defendant at the address, Counsel submitted a postmaster request which confirmed no change of address on file. 

More recently, on August 17, 2023, Plaintiff received a summons from Defendant in a suit he filed against her.  Counsel attempted to obtain Defendant’s address from Defendant’s counsel in the other action as well as Defendant’s insurance adjuster.  Counsel did not receive a response.     

On these facts and given the strong policy favoring a resolution of cases on their merits, the Court grants the motion to set aside dismissal.  As Plaintiff has timely sought relief from the dismissal pursuant to an attorney affidavit of fault, she is entitled to mandatory 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 October 20, 2023 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: October 13, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court