Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises out of a car accident.  Plaintiff Orestes Lopez was driving at the intersection of I-10 and I-405 when the accident occurred.  Plaintiff claims Defendant Sabrina Danilovica was negligent in the operation of her car.  The complaint alleges a single claim for motor vehicle negligence.   

On November 7, 2023, the Court scheduled a case management conference (“CMC”) for April 11, 2024.  On April 11, 2024, Plaintiff failed to appear at the CMC, and 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 he failed to attend the CMC because he sustained a head trauma from an accidental fall.  (Tiffany Decl. ¶ 2.)  There is 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 not due to any of the items listed above.  Accordingly, mandatory relief is available.  Moreover, while the mistake here was excusable, 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.  Indeed, Defendant has not filed an opposition to the motion to set aside.  Plaintiff promptly sought relief upon learning of the dismissal, ensuring minimal delay.  Plaintiff filed the motion to set aside within three months 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 for August 21, 2024 at 9:00 a.m.   The Court also sets for that same date and time an order to show cause why sanctions, including dismissal should not be imposed for no proof of service on Defendant.  

 

IT IS SO ORDERED. 

 

DATED: July 15, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court