Judge: Frank M. Tavelman, Case: 22BBCV00456, Date: 2023-03-10 Tentative Ruling

Case Number: 22BBCV00456    Hearing Date: March 10, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION FOR ORDER GRANTING RELIEF FROM DISMISSAL

ALLEGATIONS: 

Patricio Monroy (“Plaintiff”) filed suit against Santo Tomas Dental Group (“Defendant”) alleging damages from dental work received in October of 2019. On June 23, 2022, Plaintiff filed the initial Complaint, and then filed his first amended complaint (“FAC”). The FAC contains causes of action for (1) Medical Malpractice, (2) Negligent Infliction of Emotional Distress, (3) Breach of Contract, (4) Battery, and (5) Violations of Cal. Bus. Prof. Code § 17200.  

HISTORY: 

On December 9, 2022, the Court received a request for dismissal from Plaintiff as to the entire complaint. On December 15, 2022, the Court received a substitution of attorney for Plaintiff, reflecting that Plaintiff is now in this suit pro per. On February 6, 2023, Defendant filed its opposition to Plaintiff’s motion granting relief from dismissal. The Court notes that this was filed four days prior to Plaintiff filing the motion. On February 10, 2023, Plaintiff filed his motion. On February 27, 2023, Defendant re-filed its opposition.

ANALYSIS: 

I.                    LEGAL STANDARD 

Plaintiff seeks relief pursuant to Code of Civil Procedure § 473(b). C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson supra, 32 Cal. App. 5th 166, at 173.)  The discretionary provision of C.C.P. § 473(b), in pertinent part, reads as follows:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…

The mandatory provision of C.C.P. § 473 reads, in pertinent part, as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

The general underlying purpose of section 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made within six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought, and it must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) A “mistake” justifying relief may be either a mistake of fact or a mistake of law. (u (2002) 96 Cal.App.4th 1357, 1368. A mistake sufficient to vacate a dismissal may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction. (Id. at 1369.)

II.                 MERITS

Plaintiff asks that the court vacate the December 9, 2022 dismissal on grounds of attorney mistake. Plaintiff claims that prior to the dismissal he conferred with his counsel who informed him they intended to file for voluntary dismissal out of concern Defendant would file a motion to strike the FAC as a sham pleading. (Mot. pg. 3.) Plaintiff explains the timeline of the case as follows:

·         Plaintiff wrote the dental board in February of 2021

·         Plaintiff sought a second professional opinion in July of 2021, where he first learned of the medical malpractice

·         Plaintiff’s counsel filed the original Complaint in October 2021, referencing the February 2021 letter as the first time Plaintiff learned of the medical malpractice

·         Plaintiff’s counsel filed the First Amended Complaint but voiced that they believed the pleading would be struck down as a “sham pleading”

·         Plaintiff’s counsel informed him of the intent to file the dismissal, Plaintiff did not fully understand 

·         Plaintiff’s counsel filed the dismissal

·         Plaintiff then informed his counsel that he wanted to continue the suit and act as his own attorney

Plaintiff submits his own declaration alongside the motion attesting to the inadvertent dismissal, but no affidavit from his prior counsel is submitted.

Defendant argues that Plaintiff produced insufficient evidence to show mistake, and Plaintiff’s declaration simply shows that Plaintiff conferred with his former counsel, counsel decided to file the dismissal, and then Plaintiff later had a change of heart. Defendant argues that Plaintiff’s decision to continue the litigation does not constitute a mistake under C.C.P. § 473.

The Court finds that the mandatory provision of C.C.P. § 473(b) does not apply to Plaintiff’s request for relief. Jackson v. Kaiser Foundation Hospitals, Inc., 32 Cal. App. 5th 166, concerned a case very similar to this one where an attorney advised voluntary dismissal without prejudice. The court in Jackson found that because plaintiff’s dismissal was voluntary and without prejudice that it did not equate procedurally to a default, and thus did not fall under the mandatory relief provision. (Id.) Here, Plaintiff’s dismissal was voluntary and without prejudice. As such, the Court analyzes whether relief from Plaintiff’s dismissal is available on a discretionary basis.

The Court does find that Plaintiff has shown mistake within the meaning of the discretionary provision of C.C.P. §473(b). As previously stated, a mistake justifying relief from dismissal under C.C.P. § 473(b) can be one of either fact or law. (H.D. Arnaiz, LTD v. County of San Joaquin (2002) 96 Cal.App.4th 1357.)  Here, Plaintiff states that he met with his prior counsel who informed him of their intent to dismiss the case. (Monroy Decl. ¶ 4.) Plaintiff then states that “After having the discussion about dismissal and reading their reasons I decided that I did not want the lawsuit dismissed…” (Id. at ¶ 5.) Plaintiff’s states that by the time he had reached this decision, the dismissal had already been filed. (Id.) The Court finds that this declaration is sufficient to show that a mistake occurred within the meaning of C.C.P. §473. Plaintiff stated he knew his prior counsel intended to file for dismissal, but that he misunderstood them at the time they spoke on the phone. (Motion pg. 2.) Plaintiff received an email containing his prior counsel’s reason for dismissal and decided that he did not want to dismiss the case (Id.) With Plaintiff’s explanation, the Court is satisfied as to his misunderstanding and finds that the dismissal was entered by mistake.

Defendant argues in opposition that no mistake occurred here. Plaintiff cites to Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 140, in stating that ignorance of legal matters or failure to properly represent oneself does not constitute mistake under the statute. The Court notes that Hopkins, plaintiff was an attorney representing himself. The court in Hopkins found that plaintiff was aware of the facts constituting his case and presented no misconception upon which a mistake of law could be founded. (Id. at 1413.) Further, the plaintiff in Hopkins was seeking relief from a judgment entered against him, not a dismissal filed of his own accord. As such, the Court finds the situation in Hopkins to be distinct from this case.

Defendant also argues that granting of this motion would be futile as Plaintiff’s claims are ultimately time barred. The Court acknowledges that Defendant’s arguments as to the statute of limitations and to the consistency of Plaintiff’s pleadings may be legitimate; however, given that the purpose of C.C.P. § 473(b) is to promote adjudication on the merits, the Court finds it would be inappropriate to rely on these arguments in the instant motion. (Even Zohar supra, 61 Cal.4th 830.) 

III.              CONCLUSION

The Court GRANTS the motion for order granting relief from dismissal.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Patricio Monroy’s Motion for Order Granting Relief from Dismissal came on regularly for hearing on March 10, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR ORDER GRANTING RELIEF FROM DISMISSAL IS GRANTED. 

 PLAINTIFF TO GIVE NOTICE, UNLESS ALL PARTIES WAIVED NOTICE.

IT IS SO ORDERED. 

DATE: March 10, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles