Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises from a car accident.  Plaintiff Sarkis Messerlian was driving his car southbound on Robertson Blvd., with his wife, Plaintiff Tina Caruana. The traffic was heavy, moving at approximately 40 mph. Plaintiffs claim 19-year-old Defendant Jaime Ruelas-Montelongo recklessly sped out of a Shell gas station driveway, attempting to squeeze between closely packed vehicles.  

Montelongo’s alleged careless driving resulted in a severe collision with the right front end of the Plaintiffs’ car, pushing it into the middle tum lane and narrowly avoiding oncoming traffic. The impact caused catastrophic damage to both cars, rendering them total losses. As a result of this collision, Plaintiffs allege they suffered severe injuries.  

At the time of the accident, Montelongo was operating a car owned by Defendant Efrain Ruelas.  Plaintiffs allege that Ruelas negligently entrusted his car to Montelongo, with knowledge, or reason to know, that Montelongo was incompetent, inexperienced, or otherwise unfit to operate the vehicle in a safe and prudent manner.  

The Court scheduled a case management conference (“CMC”) for January 17, 2025.  Plaintiff’s counsel failed to appear and failed to file a CMC statement.  Due to these failures, the Court issued an Order to Show Cause (“OSC”) for February 20, 2025, regarding the failure to appear, the failure to file a CMC statement and the failure to file proof of service.  The Court also continued the CMC to February 20, 2025.  Plaintiff’s counsel filed a declaration addressing only the failure to appear.  Plaintiff failed to file a CMC statement and also explain why service had not yet been effected.  Accordingly, the Court dismissed the case.    

This hearing is on Plaintiffs’ motion to vacate dismissal.  Plaintiffs argue their counsel failed to appear at the January 17, 2025 CMC due to a calendaring mistake, and counsel failed to file a joint CMC statement for the February 20, 2025 because counsel inadvertently overlooked the fact that the February 20, 2025 OSC was merged with a 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 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 appear at a CMC, two failures to file a CMC  statement, and a failure to explain the failure to serve, all of which suggest a failure to prosecute.  Accordingly, mandatory relief is not available. 

In addition, the Court concludes there is also no basis discretionary relief.  Plaintiff failed to appear at the CMC due to an isolated calendaring mistake, resulting also in his failure to file the January CMC statement.  An isolated calendaring mistake is sufficient basis to grant relief for default.  (See Communidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1134-35 (an isolated calendaring  mistake was sufficient basis to grant relief from default); Mehdizadeh v. Mercedes Benz of United States, 2021 Cal. Super. Lexis 78937 at *3 (“An attorney’s calendaring error is sufficient to warrant relief under CCP § 473(b).”) 

However, counsel failed to file another CMC statement for the February hearing.  He also failed to explain the failure to serve in his declaration in advance of the February hearing.  Counsel maintains that he failed to read the minute order closely, and therefore, failed to realize that the February hearing was both an OSC and CMC.  But misreading a court order does not constitute excusable neglect.  (See Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 997 (11th Cir. 1997) (“[A]s a matter of law, the lawyer's failure to understand clear law cannot constitute excusable neglect.”); see also Graphic Commc'ns Intern. Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6 (1st Cir. 2001) (explaining that the “misreading of an unambiguous judicial decree" ordinarily will not constitute excusable neglect”).) 

“Excusable neglect” is generally defined as an error “a reasonably prudent person under the same or similar circumstances might have made.”  (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Thus, “[c]onduct falling below the professional standard of care, such as failure to timely object to or properly advance an argument, is not therefore excusable.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682 [68 Cal. Rptr. 2d 228] (Garcia).)  A reasonably prudent person just does not fail to properly read a one page minute order which clearly stated that the January CMC (at which Plaintiff’s counsel failed to appear) is “continued to 02/20/2025.”  There was no sophistication or legal expertise required to understand that basic order. 

Given the foregoing, the Court declines to vacate dismissal.   

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiffs’ motion to vacate dismissal.   

IT IS SO ORDERED. 

 

DATED:  May 6, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court