Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This action arises from a car accident.  On February 9, 2023, Defendant Elizabeth Romey’s car struck Plaintiff’s car.  Plaintiff claims Defendant was negligent.  The impact resulted in serious injuries to Plaintiff. 

On April 1, 2024, the Court set a case management conference (“CMC”) for October 1, 2024.  On October 1, 2024, Plaintiff failed to appear at the CMC and to file a CMC statement.  The Court set an order to show cause (“OSC”) why sanctions should not be imposed for Plaintiff’s failure to appear.  The order provided that sanctions may include dismissal of the action.  The OSC was set for October 31, 2024.  Plaintiff failed to appear for the OSC, and the Court dismissed the complaint without prejudice.   

This hearing is on Plaintiff’s motion to set aside dismissal.  Plaintiff claims that counsel failed to properly calendar the date for the OSC.  Plaintiff argues this attorney error warrants vacating the dismissal of her action.   

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 Court concludes that mandatory relief is warranted.  Counsel attests that his failure to attend the OSC was due to a calendaring error.  Mandatory relief is available based on a counsel’s affidavit of fault, even if the error was inexcusable.  (Avila v. Chua (1997) 57 Cal.App.4th 860, 868-869¿(“To obtain relief under the mandatory provisions, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances.¿Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these¿reasons.”); (Nmh Broadway v. Carrillo, 2017 Cal. Super. LEXIS 57900 at *2-*3¿(mandatory relief¿granted even though counsel's¿calendaring errors¿and other mistakes were inexcusable).)  Accordingly, the Court will vacate the order of dismissal pursuant¿to the¿mandatory relief¿provisions of¿Code Civ. Proc. §473(b).   

While the Court vacates the order for dismissal, Plaintiff must still respond to the OSC why counsel failed to appear at the October 1 CMC.  (Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1565-1566¿(where mandatory relief is granted, plaintiff must still respond to the underlying motion to dismiss).)  The hearing on the OSC why sanctions should not be imposed is set for December, 9, 2024 at 8:30 a.m. The Court grants Plaintiff leave to file her response to the OSC. That response must be filed and served by email by December 2, 2024.  Any response from Defendant must be filed and served by email, with a courtesy copy to the court at Bev205@lacourt.org, by December 4, 2024.  At that hearing the Court will consider whether sanctions are warranted. 

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to vacate dismissal.   

 

IT IS SO ORDERED. 

 

DATED: November 27, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court