Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises out of a slip and fall.  Plaintiff Shayne Stalnaker claims he was working at the Beverly Hilton when he slipped and fell due to water on the stairs.  He sustained serious and permanent injuries requiring surgery.  His wife, Aimee Stalnaker, claims loss of consortium.   

The complaint alleges claims for premises liability and loss of consortium against two Defendants: Oasis West Realty dba The Beverly Hilton and Beny Alagem. 

On June 28, 2023, Plaintiffs’ counsel appeared at a case management conference (“CMC”).  Counsel informed the Court that he expected Defendants to be served soon.  The Court then continued the CMC to October 25, 2023.   

At the October 25 CMC, counsel informed the Court that Oasis was served and that Plaintiff expected Oasis to answer the complaint; otherwise, Plaintiff would seek a default against Oasis.  Counsel advised the court that Plaintiff was having difficulties serving the complaint on Oasis’ registered agent’s office because nobody was ever there, so instead the process server served Oasis by substitute service directly at the Hilton.  The Court then set an Order to Show Cause (“OSC”) re dismissal of the complaint as to Alagem and OSC re default as to Oasis on January 3, 2024. 

At the January 3 OSC, the Court dismissed Alagem without prejudice as he had not been served, and dismissed Oasis without prejudice as Plaintiff had failed to request default against Oasis.   

This hearing is on Plaintiffs’ motion to vacate the dismissal.  Plaintiffs seek mandatory relief due to their counsel’s mistake, inadvertence, surprise or neglect.  Plaintiffs argue that counsel failed to inform the Court about a medical emergency involving his father that delayed his prosecution of the case and about his own illness at the January 3 OSC that prevented him from adequately explaining the problems Plaintiff had in serving Defendants.  Plaintiffs represent that all Defendants have now been served.     

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 due to a failure to prosecute, i.e., a failure to serve the complaint and a failure to seek default.  Accordingly, mandatory relief is not available. 

The Court next considers whether discretionary relief is available. To obtain discretionary relief for attorney error under¿section 473, subdivision (b), counsel’s neglect must be excusable.  (Zamora, 28 Cal.4th at 258.)  Because attorneys as members of a learned profession are held to a standard of conduct befitting those with specialized training and skill, and because as a general matter clients are bound by the judgments and decisions of their chosen counsel, the excusability standard under¿section 473¿is often difficult to meet where a client seeks relief for the errors or omissions of his or her attorney.  That is because “[i]n determining whether [an] attorney’s mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent¿person¿under the same or similar circumstances” might have made the same error.’ … [Citation.] … [T]he discretionary relief provision of¿section 473¿only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ ‘Conduct falling below the professional standard of care, ¿such as failure to timely object or to properly advance an argument, is not therefore excusable. … .’” (Zamora, 28 Cal.4th at p. 258.)  

Here, Plaintiffs’ counsel avers that he was physically ill at the January 3 OSC, and his illness precluded him from advancing arguments relating to the difficulty in serving Defendants or to the fact that he expected Defendants would be served within a few days, which is in fact what happened here.  (Fernandez Decl. ¶ 26.)  Defendants were served within 1-2 days of the January 3 OSC.  (Motion at 6:1-2.)  Plaintiffs’ counsel also attests that due to his father’s illness, he had to take time off, and this delayed the prosecution of this case.  (Fernandez Decl. ¶ 15.)   

A number of California decisions have upheld orders granting discretionary relief under¿section 473(b) because of¿counsel’s illness.  (See, e.g.,¿Contreras v. Blue Cross of California¿(1988) 199 Cal.App.3d 945, 951¿(trial court did not abuse its discretion in finding that attorney’s failure to file timely amended complaint was excusable where she had fractured her wrist and elbow);¿Robinson v. Varela¿(1977) 67 Cal.App.3d 611, 616¿(trial court did not abuse its discretion in finding that attorney’s failure to file a timely answer was excusable in part because attorney was suffering from an illness);¿Arnke v. Lazzari Fuel Co.¿(1962) 202 Cal.App.2d 278, 281–282¿(counsel’s declaration that he failed to file a timely answer because he had an illness and had been engaged in negotiations to settle the dispute constituted sufficient evidence of excusable neglect).) 

Given these authorities 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 Plaintiffs’ motion to vacate dismissal under Code Civ. Proc. §473(b).  The action is reinstated.  The Court sets a case management conference for April 3, 2024 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: February 22, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court