Judge: Edward B. Moreton, Jr., Case: 23SMCV05615, Date: 2024-04-30 Tentative Ruling

Case Number: 23SMCV05615    Hearing Date: April 30, 2024    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This is an unlawful detainer action.  Plaintiff 855 Moraga Properties, LLC owns the property located at 855 Moraga Drive #6 Los Angeles, CA 90049 (the “Property”).  Defendant Kristie Capozzoli leased the Property from Plaintiff.  Plaintiff claims Defendant has failed to pay rent for the months of October to November 2023. 

The court set a trial date on the unlawful detainer action for March 27, 2024 at 9:00 a.m.  At the date of trial, Plaintiff appeared in person, but Plaintiff’s counsel appeared by phone.  Plaintiff’s counsel requested a continuance of the trial.  The Court denied the request and dismissed the case.

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff submits the declaration of counsel which avers that the failure to appear in person was due to counsel’s mistake, inadvertence, surprise or neglect in failing to ensure that an attorney from counsel’s law firm could appear for the trial.  While an attorney was originally scheduled to appear for the trial, that attorney later notified the office at 4:27 p.m. on March 26, 2024 that he was unavailable for this appearance.  The firm had approximately 50 court proceedings scheduled for March 27, 2024, and counsel was not able to find another attorney to appear in person for the trial.  As such, counsel scheduled for an attorney to appear remotely and request a continuance, but the request was denied.  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.4^th 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.5^th 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.4^th 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 due to a scheduling error, and therefore, mandatory relief is available.  Plaintiff’s counsel submits a declaration stating that his office failed to schedule an attorney to appear at the trial.  (Minassian Decl., ¶4.)  As Plaintiff has timely sought relief from the dismissal pursuant to an attorney affidavit of fault, it is entitled to mandatory relief.  The March 27, 2024 dismissal is vacated.

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiffs’ motion to vacate dismissal under Code Civ. Proc. §473(b).  The action is reinstated.  The Court sets a case management conference for May 6, 2024 at 9:00 a.m. 

IT IS SO ORDERED.

DATED: April 30, 2024                                                        ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court