Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a medical malpractice and medical battery case.  Plaintiff Mieke Ter Poorten was admitted to Defendant Providence Saint John’s Health Center for a severe allergic reaction.  Plaintiff was seen by an emergency room doctor, Elizabeth Hall, who ordered intravenous medication.  Plaintiff throat closed when the medication was administered, and Hall ordered a nurse to inject epinephrine intramuscularly through Plaintiff’s thigh.  The nurse mistakenly injected the epinephrine into Plaintiff’s intravenous fluid line, causing damage to Plaintiff’s heart.   

This action ensued.  The operative complaint alleges three claims for (1) negligence, (2) medical battery and (3) lack of informed consent. 

The Court set the initial Case Management Conference (“CMC”) for April 16, 2024.  (Bernardino Decl. ¶ 4.)  Plaintiff’s attorney did not file a CMC statement or appear at the CMC.  (Id. ¶ 4.)  The Court issued an Order to Show Cause (“OSC”) and continued the initial CMC to May 16, 2024.  (Id. ¶ 6.)  Plaintiff’s attorney failed to file a CMC statement for the continued CMC and failed to appear at the May 16, 2024 CMC.  (Id. ¶ 6.)  As a result of counsel’s failure to appear, on May 16, 2024, the Court dismissed the action.  (Id.)   

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff argues that mandatory relief should be granted because of her attorney’s neglect in failing to submit statements and appear at the two CMC’s, which neglect was a result of his illness and disability.  There was no opposition filed as of the posting of this tentative ruling.       

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 for failure to prosecute, namely that Plaintiff failed to file required CMC statements and to appear at two CMCs.  Accordingly, Plaintiff is not entitled to mandatory relief.         

The Court also concludes Plaintiff is not entitled to discretionary relief.  Discretionary relief is available where there is mistake, inadvertence, surprise or neglect.  (Code of Civ. Proc. § 473(b).)  The mistake, inadvertence, surprise, or neglect¿must¿be reasonable¿to justify discretionary relief.¿ (Conway v. Municipal Court¿(1980) 107 Cal.App.3d 1009, 1017; see¿Carroll v. Abbott Laboratories, Inc.¿(1982) 32 Cal.3d 892, 898.) 

Here, the Court finds there has been no showing of excusable neglect.  While one's natural sympathies incline towards an attorney who becomes disabled from illness, rendering him incapable of carrying on his normal practice, we are enjoined that the discretion in granting relief in this type of situation is not¿automatic. (Benjamin¿v.¿Dalmo Mfg. Co. (1948)¿31 Cal.2d 523, 526.)   We must examine the nature of the illness as described and then consider if the illness was so disabling that the neglect consisted only of acts or omissions of a kind which a reasonably prudent sole practitioner caught in similar circumstances would commit. 

Counsel attests he was diagnosed with cancer on July 2022, and shortly thereafter began treatment.  Because of his illness and the side effects of treatment, he became disabled, and has not been able to return to work since the end of November 2022.  (Id. ¶3.)  But the Complaint in this action was filed on November 17, 2023.  That is, counsel took on the matter after he became disabled and was well enough to file a complaint.  In addition, counsel is not a solo practitioner, but a member of a law firm.  Indeed, counsel attests he reassigned all matters for which he was responsible to other lawyers on all pending matters.  (Id.)  Accordingly, counsel’s disability is not the actual reason for the failure to attend the CMCs.  (Transit Ads, Inc. v. Tanner Motor Livery, Ltd.¿(1969) 270 Cal.App.2d 275, 286-288 (granting relief from default was an abuse of discretion where there was no showing that disabling illness, and not inexcusable neglect, was the real cause for the default).)    

Counsel attests that he did not see the notice setting the CMC for April 16, 2024, as he was not in the office, and therefore, he did not calendar the initial CMC and/or appear at the initial CMC on April 16, 2024.  (Id. ¶4.)  There is no explanation as to why the attorney to whom he re-assigned this case would not have been reviewing court orders and other filings, and instead, it fell on counsel to review notices for CMCs.  For that matter, there is no explanation as to why the law firm’s staff would not have been in charge of calendaring matters.         

Counsel attests that he re-assigned the matter to Ashton Watkins, but due to Watkins’ trial schedule, Watkins could not respond to the OSC or file a statement for the continued CMC, although Watkins appeared at the second CMC.  But that counsel was overburdened with work is not excusable neglect.  (Willett v. Schmeister Mfg. Co.¿(1926) 80 Cal.App. 337, 339-340 (being “overburdened with work” is insufficient to constitute excusable neglect when attorney failed to file required papers in a timely manner).)       

In sum, mandatory relief is unavailable for a failure to prosecute, and there is no showing of excusable neglect that would justify discretionary relief.   

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiffs’ motion for relief from dismissal.   

 

IT IS SO ORDERED. 

 

DATED: October 4, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court