Judge: Edward B. Moreton, Jr, Case: 24SMCV00317, Date: 2025-04-17 Tentative Ruling

Case Number: 24SMCV00317    Hearing Date: April 17, 2025    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a car accident.  Plaintiff Ana Ituh alleges she was rear-ended by Defendant Brian Corrigan.  According to Plaintiff, Defendant was driving negligently at the time of the accident.

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  On October 18, 2024, the Court ordered dismissal after Plaintiff failed to appear for a case management conference (“CMC”), failed to submit a case management conference statement before the CMC, and failed to serve Defendant.  Plaintiff argues that the dismissal should be vacated because he failure to appear at the CMC was due to a calendaring error by his counsel.  His counsel thought that the CMC was for November 18, 2024, not October 18, 2024, and therefore, counsel failed to file a CMC statement or appear for the CMC.  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.4^th 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

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 failure to serve Defendant, a failure to file a CMC statement and a failure to appear at a CMC.  Plaintiff represents that the failure to appear at the CMC and file a CMC statement was due to his counsel’s calendaring error, and therefore, mandatory relief is available, and the Court must vacate the dismissal of his Complaint.  It is true that that relief under C.C.P. § 473 is appropriate for calendaring errors.  (Haviland v. Southern California Edison Co. (1917) 172 Cal. 601, 605; Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483.)  And while the calendaring error explains the failure to file a CMC statement or attend a CMC, counsel never explains why Defendant was not served, which is one of the bases for the dismissal.  Accordingly, the Court denies the motion to vacate dismissal.

CONCLUSION AND ORDER

Based on the foregoing, the Court DENIES Plaintiff’s motion to vacate the order of dismissal. 

IT IS SO ORDERED.

DATED: April 17, 2025                                                        ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court