Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This is a lemon law case.  According to the Complaint, on December 27, 2022, Plaintiff Diana Lyte entered into a warranty contract with Defendant Volkswagen Group of America, Inc. (“VW”) regarding a 2019 Volkswagen Tiguan.  Defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to powertrain problems.  

Plaintiff delivered the car to an authorized VW repair facility for repair of the nonconformities.  Defendant was unable to conform the car to the applicable express warranty after a reasonable number of repair attempts or within a reasonable amount of time.   

Under the Song-Beverly Act (“SBA”), VW had an affirmative duty to promptly offer to repurchase or replace the car at the time if failed to conform the car to the terms of the express warranty after a reasonable number of repair attempts.  VW has failed to either promptly replace the car or to promptly make restitution in accordance with the SBA.  

The operative complaint alleges two claims for (1) violation of the SBA-breach of express warranty, and (2) violation of the SBA-breach of implied warranty. 

A case management conference (“CMC”) was scheduled for July 15, 2024.  The CMC was continued to August 15, 2024 due to Plaintiff’s failure to file a case management statement, and an OSC was set re: sanctions for failure to submit a case management statement.   

Plaintiff failed to appear for the August 15, 2024 CMC.  The Court dismissed the complaint without prejudice.   

This hearing is on Plaintiff’s motion to vacate the dismissal of her complaint.  Plaintiff submits the declaration of her counsel who attests he mistakenly believed the CMC was scheduled further out.  He claims he checked the Court’s docket on August 8, 2024, and there was no CMC posted on the docket.   

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 due to a failure to prosecute.  Counsel failed to file a case management statement, and then failed to appear at the OSC re sanctions for failure to submit the case management statement.  Therefore, mandatory relief is not available.   

As to discretionary relief, the Court concludes counsel’s mistake was not excusable.  Counsel maintains that he did not know that a CMC had been set for August 15, 2024.  But he was at the July 15, 2024 CMC where the Court continued the CMC to August 15, 2024.  (Hensley Decl. ¶ 2.)    

Further, there was a minute order issued on the same date setting the CMC for August 15, 2024.  Counsel concedes he received a physical copy of the minute order.  (Id. ¶ 5.)  The July 15, 2024 minute order was on the docket, and the Court does not credit counsel’s claim that when he checked the docket on August 8, 2024, there was no mention of the August 15, 2024 CMC.   

Counsel also seeks to blame his failure on the ransom-ware attack on the Los Angeles Superior Court’s system.  He claims that because of the attack, he assumed the hearing would be pushed out, and this may have been the reason that the docket did not show the scheduled CMC as of August 8, 2024 when counsel was checking the docket.  (Id. ¶ 6.)  But the Court returned to normal operations by July 29, 2024.  And the Court never amended its July 15, 2024 minute order setting the CMC for August 15, 2024 based on the ransom-ware attack, or for any other reason.     

Counsel’s mistake was not due to any excusable neglect, but was the result of counsel's conduct falling below the professional¿standard¿of¿care, which is¿inexcusable.  (Luri v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1129.)¿ Given that counsel’s neglect was not excusable, the Court denies the motion to set aside dismissal. 

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motion to set aside dismissal.   

 

IT IS SO ORDERED. 

 

DATED: September 20, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court