Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a car accident.  Plaintiff Kyeongjae Lee alleges she was rear-ended by Defendant Eric Moss, when she was at a complete stop due to traffic.  Plaintiff alleges that Defendant was negligently operating his car at the time of the accident. 

This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint.  On September 25, 2024, the Court ordered dismissal after Plaintiff failed to file a proof of service, failed to file a statement in response to the OSC re failure to file proof of service, and failed to file a case management conference (“CMC”) statement.  Plaintiff argues that all of these failures resulted from the abrupt departure of the attorney handling her matter and the failure of the departing attorney to ensure a proper transition of Plaintiff’s case to another attorney in the firm.  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 file proof of service, failure to explain the failure to file proof of service, and the failure to file a CMC statement, all of which suggest a failure to prosecute.  Accordingly, mandatory relief is not available. 

The Court next considers whether Plaintiff is entitled to discretionary relief.  Plaintiff’s counsel attests that the error in this case was due to his mistake, inadvertence and excusable neglect.  Counsel represents that the prior attorney handling the matter “abruptly resigned at the end of May 2024 without adequate notice or cooperation in transitioning the case, resulting in significant delays and confusion regarding case status and upcoming deadlines.”  Compounding these challenges, Plaintiff’s counsel had a previously scheduled international business trip and was not scheduled to return to Los Angeles until 40 minutes before the September 25 hearing.  Accordingly, counsel maintains he was not able to file the CMC statement or proof of service, but he did appear at the conference remotely. 

As the departure of the prior attorney was approximately four months before the September 25 hearing, the Court cannot conclude that the error here was excusable.  Even if the Court were to conclude otherwise, Section 473¿requires that an application thereunder be made “within a reasonable time,” in no case exceeding six months after the judgment, order, or proceeding was taken.¿ Thus, Plaintiff has a double burden -- to show a satisfactory excuse for his default (Berset¿v.¿Berset, 126 Cal.App.2d 684) and diligence in making the motion after discovery of the default (Benjamin¿v.¿Dalmo Mfg. Co., 31 Cal.2d 523).¿  

Here, while Plaintiff made her motion to vacate within the six month deadline, the Court concludes she did not make it ”within a reasonable time.”  There is no explanation in the papers as to why Plaintiff waited one day before the six month deadline to file her motion to vacate, when she knew as of September 25, 2024, all of the facts she now argues entitle her to relief from the order of 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 2, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court