Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a trip and fall case.  On or about December 20, 2021, Plaintiff Yvonne Nash claims she tripped and fell at the property located at 727 Westbourne Drive, West Hollywood, California, which she claims is owned or managed by Defendants Venture Property Management, Cornflower Equity and Brett M. Talla.  

Plaintiff alleges “Defendants and each of them negligently and carelessly owned, occupied, maintained, inspected, supervised, operated, controlled, managed, cleaned, used, repaired, directed and superintended the above described premises so as to cause Plaintiff YVONNE NASH to trip/slip and fall when she came into contact with a dangerous and hazardous condition on the subject property.”    

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  The Court ordered dismissal after Plaintiff failed to request default on served defendants, and proposed default judgment packages were not submitted.  The Court noted that “[t]here is no response to the order to show cause.”  Plaintiff argues that she actually filed a response to the OSC which stated that Plaintiff was in the process of serving the statement of damages on the served defendants to support a request for default.  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 is 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 

Plaintiff argues that the Court should grant both mandatory and discretionary relief to vacate the order of dismissal.  However, Plaintiff is not claiming that the dismissal was the result of her or her counsel’s mistake or inadvertence.  Rather, Plaintiff argues that the Court mistakenly concluded there was no response to the OSC, when in fact she filed a response on November 8, 2024, six days before the Court’s order of dismissal.  Court error is not a basis for relief under section 473.  However, the Court will not elevate form over substance, and agrees with Plaintiff that the order of dismissal was entered in error and will be vacated.  The Court ordered dismissal based on the lack of response to the OSC.  But a response was in fact filed.    

CONCLUSION AND ORDER 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to vacate order of dismissal.  The action is reinstated.  The Court sets a case management conference on the case for June 27, 2025 at 8:30 a.m.  At that same date and time, the Court sets an order to show cause why sanctions, including possibly dismissal should not be imposed for failure to file a proof of service as to Defendant Cornflower Equity and failure to enter default as to Defendants Venture Property Management and Brent M. Talla. 

 

IT IS SO ORDERED. 

 

DATED: March 28, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court