Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a car accident.  According to the Complaint, Plaintiff George Khouri’s car was rear-ended by Defendant Jeffrey Lindsey’s car.  Defendant also struck Khouri’s car a second time, after he rear-ended it.  Khouri claims he sustained substantial injuries as a result of the accident. 

The Court set an initial case management conference (CMC) on August 20, 2024.  Plaintiff failed to appear.  The Court then continued the CMC to October 18, 2024, and set an Order to Show Cause (“OSC”) re sanctions as to why Plaintiff failed to appear, failed to file a CMC statement and failed to serve Defendant.  Plaintiff failed to appear at the October 18, 2024 CMC and OSC.  As a result, the Court dismissed the Complaint without prejudice. 

Plaintiff now moves to vacate the order of dismissal, 179 days after the dismissal was entered.  Plaintiff’s counsel claims she failed to appear at the August 20, 2024 CMC because she was severely ill and she could not find someone to specially appear for her on short notice.  There is no explanation as to why counsel failed to file a CMC statement.  As to failure to serve Defendant, Plaintiff claims Defendant had accepted liability and therefore she did not serve him.  Plaintiff’s counsel then claims she failed to appear at the October 18, 2024 CMC and OSC because the hearing had been miscalendared by her assistant.  Plaintiff’s counsel also claims that she did not notice the dismissal until recently because she was consumed with personal obligations, including having to care for her brother who is quadriplegic after her brother’s caretaker left the country due to an emergency.  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 

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 serve Defendant, a failure to file a CMC statement, a failure to file a declaration in response to the OSC, a failure to appear at an OSC and two failures to appear at a CMC.  These combined failures constitute a failure to prosecute, and accordingly, mandatory relief is not available. 

Moreover, the Court concludes that discretionary relief is also not available.  That Defendant had accepted liability is not a reasonable excuse to fail to serve Defendant, which is one of the bases for dismissal.  Indeed, to this day, Plaintiff still has not filed a proof of service showing Defendant was served.   

Further, while the motion to vacate dismissal was filed within six months, Plaintiff was required to file it within a “reasonable time.”  (Schwartz v. Smookler (1962) 202 Cal.App.2d 76, 81.)  Plaintiff’s counsel claims she did not file the motion to vacate till now because she was consumed with having to take care of her disabled brother.  While the Court is sympathetic to counsel’s personal situation, the caretaker for counsel’s brother left in April 2024, a year before Plaintiff’s counsel filed her motion to vacate and six months before Plaintiff’s case was dismissed.  It cannot provide a reasonable excuse for the delay in filing the motion to vacate.    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:  May 13, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court