Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a car accident.  On October 28, 2022, Plaintiff Vahe Khachikyan was at a complete stop near the intersection of Crescent Heights Blvd and Santa Monica Blvd. when her car was rear ended by Defendant Melvin Schecter’s car.  As a direct and proximate cause of Defendant's alleged negligence, Plaintiff claims she sustained serious bodily injuries and property damage.  

This action ensued.  Plaintiff filed a form complaint against Defendant alleging two claims for motor vehicle and general negligence.   

On July 31, 2024, the Court held a case management conference (“CMC”) and an order to show cause (“OSC”) hearing on Plaintiff’s failure to appear at a prior CMC on July 1, 2024.  There being no appearance or filing by Plaintiff addressing the OSC for failure to appear at the prior CMC, the Court dismissed the action without prejudice.   

This hearing is on Plaintiff’s motion to vacate the dismissal.  Plaintiff argues that the failure to appear at the CMC and OSC was due to his attorney’s error resulting from the hiring of a new administrative team, which inadvertently resulted in previously scheduled hearings being either deleted or rescheduled to incorrect dates.     

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 not due to any of the items listed above.  Counsel attests that the failure to attend the OSC and CMC was due to a calendaring error.  He practices in both Nevada and California, and in an effort to streamline management of his cases across both offices, he hired a new administrative team.  (Ksachukyan Decl. ¶4.)  Unfortunately, during the transition period, a significant mix up occurred in both his calendars, which resulted in previously scheduled events being either deleted or rescheduled.  (Id. ¶5.)  Accordingly, he missed the CMC scheduled for July 1 as well as the CMC and OSC scheduled for July 31.  (Id. ¶6.)  Counsel maintains that he has taken immediate correct measures to restore the accuracy of his calendars and prevent similar occurrences in the future.  (Id. ¶7.)   

Defendant argues that counsel’s mistake was not excusable because Plaintiff was provided notice of the hearing on July 31, 2024.  Thus, irrespective of any internal scheduling issues, there was a notice of the hearing that should have prompted Plaintiff to recognize there was a mis-calendaring error.  But mandatory relief is available even if counsel’s mistake was inexcusable.  (SJP Limited Partnership, 136 Cal.App.4th at 516–517.)  The statute is clear that upon an attorney’s affidavit of fault, relief is mandatory.   

Notably, Defendant has not argued he is prejudiced.  Plaintiff filed the motion to vacate dismissal on August 7, 2024, within four court days of the Court’s dismissal on July 31, 2024.  There was no delay that could have prejudiced Defendant.  That Defendant will now need to defend the case on its merits does not demonstrate prejudice.  (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal. App. 3d 725, 740.)  Rather, prejudice refers to the harm one might suffer as the result of protracted delay, such as the loss of substantial evidence or missing witnesses.  (Id.)  Here, no such delay or loss has been demonstrated.  

Accordingly, given the attorney affidavit of fault, the lack of prejudice, and 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 Plaintiff’s motion to set aside dismissal.  The action is reinstated.  The Court sets a case management conference for October 24, 2024 at 9:00 a.m.     

 

IT IS SO ORDERED. 

 

DATED: September 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court