Judge: Edward B. Moreton, Jr., Case: 23SMCV01349, Date: 2024-04-09 Tentative Ruling

Case Number: 23SMCV01349    Hearing Date: April 9, 2024    Dept: 205

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This action arises from the breach of an agreement to pay for legal services. On March 28, 2023, Plaintiff Novian & Novian, LLP (“Plaintiff”) filed a Complaint against Defendants Raphael Berry, Samir Berry, Berri’s Pizza Café, LLC (“BPC”), RHB Group, LLC (“RHB”), Morisani Enterprises (“Morisani”) (collectively “Defendants”) and DOES 1 through 10, inclusive, alleging causes of action for: (1) breach of written contract, (2) common count: goods and services rendered, (3) account stated, (4) quantum meruit, and (5) unjust enrichment.

On June 13, 2023, default was entered against all Defendants except Defendants Morisani and Raphael Berry.

On July 27, 2023, default was entered against Defendant Raphael Berry.

On October 18, 2023, default was entered against Defendant Morisani.

On February 8, 2024, the Court held an OSC re: Dismissal/Sanctions for Failure to File Default Judgments. There was no appearance by or for Plaintiff and no communication with the Court as to why there were no appearances. (02/08/24 Minute Order.) The Court dismissed the Complaint filed by Plaintiff on March 28, 2023 without prejudice. (02/08/24 Minute Order.)

On March 6, 2024, Plaintiff filed and served the instant unopposed Motion for an Order Setting Aside Dismissal. Plaintiff moves for an order pursuant to CCP § 473(b) setting aside the Court’s dismissal of this action without prejudice. The motion is unopposed. Any opposition to the motion was required to have been filed and served at least nine court days prior to the hearing. (CCP § 1005(b).)

Legal Standard/Applicable Law

            “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken.” (Ibid.) “It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.) 

            Code Civ. Proc. § 473(b) also contains a mandatory relief provision. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4^th 511, 516.) “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment; or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.) “If the prerequisites of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” (Ibid.)

            “Whenever relief is granted based on an attorney’s affidavit of fault, the court shall direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties, in addition to whatever additional fees are authorized by subdivision (c), of Code Civ. Proc. § 473.” (J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4^th 1485, 1491.) Whenever the court grants relief from a dismissal based on any grounds in Code Civ. Proc. § 473, the Court may: (1) impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party; (2) direct that an offending party pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund; or (3) grant other relief as is appropriate. (Code Civ. Proc., § 473, subd. (c)(1)(A)-(C).)  

Analysis

In support of the motion, Plaintiff’s counsel, Amber Miller (“Miller”), declares the following: on February 7, 2024, the evening prior to the OSC re: Dismissal/Sanctions for Failure to File Default Judgments, she traveled by plane from Los Angeles to San Francisco for an in-person deposition that was scheduled for February 8, 2024. (Miller Decl., ¶ 7.) The deposition was scheduled to take place on the same day as the hearing but was set to commence later in the morning. (Miller Decl., ¶ 7.) Although the deposition was cancelled at the last minute, counsel was working from a new location in a different city and was not at her usual desk or in her normal workspace or routine on the day of the OSC hearing. (Miller Decl., ¶ 8.)

Counsel’s assistant did not sign her up for an appearance at the hearing, and counsel relies on her assistant and the LA Court Connect Remote Appearance Reminders as a back-up reminder for her scheduled hearings. (Miller Decl., ¶ 9.) Counsel’s assistant did not remind her of the hearing. (Miller Decl., ¶ 9.) Counsel states that due to the above-identified unusual circumstances, she mistakenly forgot that the hearing in this action was scheduled for February 8, 2024. (Miller Decl., ¶ 10.) Due to her own inadvertence and/or neglect, she failed to attend the OSC hearing. (Miller Decl., ¶ 11.) Had she remembered that the hearing was scheduled for that day, counsel attests that she would have attended the hearing and filed the default prove-up package in advance of the hearing. (Miller Decl., ¶ 11.)

 The Court finds that counsel has shown that the dismissal of this action was due to counsel’s mistake and inadvertence. The Court finds that the motion is also timely. Plaintiff has shown grounds for discretionary and mandatory relief under Code Civ. Proc., § 473, subd. (b).

As to the issue of payment of reasonable compensatory fees and costs to the opposing parties, the Court need not impose payment of such fees and costs due to Plaintiff showing a basis for discretionary relief. (J.A.T. Entertainment, Inc. v. Reed, supra, 62 Cal.App.4th 1485, 1491.) 

Conclusion

Accordingly, the Court GRANTS Plaintiff’s Motion for an Order Setting Aside Dismissal.

Dated: April 9, 2024

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court