Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a legal malpractice case.  Plaintiff Michael Sapir alleges his former attorney, Ed W. Pilot failed to timely file a complaint, within the applicable statute of limitations.  Plaintiff is appearing in pro per.   

On January 3, 2024, the Court held a case management conference (“CMC”) and an OSC hearing on why sanctions should not be imposed for Plaintiff’s failure to file a proof of service.  Plaintiff did not attend the hearing, and accordingly, the Court dismissed the action without prejudice.    

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff argues that relief should be granted because (1) he mistakenly believed a licensed attorney would attend the January 3, 2024 hearing and provide the Court assurances that the lawsuit would be diligently prosecuted; (2) he was surprised counsel failed to appear; (3) his failure to appear was due to excusable neglect as his actions were that of a reasonably prudent person under the same circumstances given assurances by the attorney that he would represent Plaintiff; (4) he contracted COVID and could not attend the hearing personally, and (5) he did not know he could appear remotely.  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 a proof of service.  In addition, there is no attorney at fault affidavit.  Accordingly, Plaintiff is not entitled to mandatory relief.         

However, the Court concludes Plaintiff is 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 that Plaintiff reasonably believed he would be represented by counsel, and that counsel would appear at the January 3, 2024 hearing on his behalf.  (Sapir Decl. ¶¶ 4-6.)  His mistake, surprise and excusable neglect were reasonable under the circumstances, given counsel’s assurances that he would represent Plaintiff.  (Id. ¶4.)  A reasonable person under the same circumstances would have acted as Plaintiff did.  In addition, Plaintiff could not appear in person at the hearing in any event because he contracted COVID, and when he attempted to appear remotely, he was told his case had already been called and dismissed.  (Id. ¶¶ 6, 8.)  

Given 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 set aside dismissal.  The action is reinstated.  The Court sets a case management conference for September 23, 2024 at 9:00 a.m.     

 

IT IS SO ORDERED. 

 

DATED: August 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court