Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises out of an accident on a tour bus.  Plaintiff Karen Tellez was a passenger on a bus driven by Defendant Rosa Villatoro.  As Plaintiff descended the stairs from the rooftop seating area of the bus, Villatoro is alleged to have suddenly and without warning, abruptly stopped the bus, causing injury to Plaintiff.   

On July 14, 2023, Plaintiff failed to appear at a case management conference (“CMC”).  The Court noted Plaintiff had not submitted any filings including proof of service on Defendant.  The Court therefore set an Order to Show Cause (“OSC”) re: Dismissal for September 15, 2023.  While Plaintiff’s counsel appeared at the OSC, the Court dismissed the case stating that the Court had nothing in writing regarding the OSC.     

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.  Plaintiff argues that her counsel did file a declaration prior to the OSC.  The declaration was filed on September 14, 2023, a day before the OSC hearing, and the Court did not receive the declaration until after the OSC.  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 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.) 

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 due to a calendaring error, he failed to appear at the CMC.  Plaintiff’s case was being reassigned to different counsel when the CMC was missed, and the calendar entry did not transfer to the new handling attorney’s calendar due to an error.  Counsel filed a declaration attesting to these facts for the OSC re dismissal, but the declaration was missed because counsel filed it only a day before the OSC.  (Gasway Decl. ¶¶3-7.)   

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 December 1, 2023 at 9:00 a.m.   

 

IT IS SO ORDERED. 

 

DATED: November 14, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court