Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

Defendants Farhad Moossazadeh and Nahal Moossazadeh own a home located at 508 N. Roxbury Dr, Beverly Hills, CA 90210 (the “Property”).  Plaintiff Hershel Mangoli and Defendants entered into a written contract for general construction on the Property.  The contract price was a total of $1,550,000, to be paid by the Moossazadehs to Mangoli, per a payment schedule which called for partial payments, upon completion or part completion of each item of work.   

By June 2018, Mangoli had completed more than 90 percent of the scope of work.  But as of May 2018, the Moossazadehs had failed to pay Mangoli for his outstanding invoices which amounted to more than $350,000.  On June 1, 2018, Mangoli filed a Mechanics’ Lien on the Property.   

On these facts, the operative complaint alleges two claims for (1) foreclosure on mechanic’s lien and (2) breach of contract.   

This case is related to 20SMCV00452.  In this case, Monagoli claims the Moossazadehs did not pay him for his construction work.  In 20SMCV00452, the Moossazadehs claim that Mangoli’s construction was negligent and defective.   

Trial in this case and the related case was set to start on July 1, 2024.  On July 1, no party appeared for the trial.  Accordingly, the Court dismissed both cases without prejudice.   

In 20SMCV00452, the Moossazadehs moved to vacate dismissal on the ground counsel had mistakenly believed that trial had been continued.  The Court granted the motion to vacate. 

This hearing is on Mangoli’s parallel motion to vacate the dismissal of his complaint.  Mangoli seeks relief from the dismissal because he claims that counsel was advised by telephonic notice from the courtroom clerk that trial had been continued to July 19, 2024 and, thus, counsel did not appear on the July 1, 2024 trial date.   

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 not due to any of the items listed above.  Counsel declares that he was informed by the courtroom clerk on June 24, 2024 that the ongoing trial that this case was trailing would not end until mid-July 2024 and “everything” was being moved to mid-July.  (Berokim Decl. ¶¶ 2, 3.)  Counsel also states that it was the Court’s practice to continue the trial date periodically by telephonic notice as it did on prior occasions, and therefore, counsel reasonably relied on the call with the clerk to conclude trial would be continued.  (Id. ¶¶ 1, 3.)  

Counsel was mistaken.  The June 24, 2024 Minute Order stated that “the Court is currently engaged in trial and the Non-Jury trial date currently set will trail the current trial.  On the Court’s own motion, the Non-Jury trial scheduled for 6/17/24 is continued to 7/01/94 at 9:00 a.m. in Department 205 at Beverly Hills Courthouse.”  The June 24, 2024 Order was never amended or withdrawn.  Counsel violated that order when he failed to appear for trial on July 1, 2024.   Notwithstanding, mandatory relief is available even if counsel’s mistake was inexcusable.  (SJP Limited Partnership, 136 Cal.App.4th at 516–517.)     

The Moossazadehs have not demonstrated any unfair prejudice that would result from setting aside the dismissal.  Indeed, the Moossazadehs have not filed an opposition to the motion to set aside.  Plaintiff promptly sought relief upon learning of the dismissal, ensuring minimal delay.  Plaintiff filed the motion to set aside within fifty days of the dismissal.  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.  (Rappleyea, 8 Cal..4th at 980;¿Elston,¿38 Cal.3d at 233.)  Plaintiff have met this “slight” threshold.         

Given the attorney affidavit of fault and the strong policy favoring a resolution of cases on their merits, the Court grants the motion to set aside dismissal. 

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion to set aside dismissal.  The action is reinstated.  The Court sets trial for September 30, 2024 at 9:00 a.m.     

 

IT IS SO ORDERED. 

 

DATED: September 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court