Judge: Gail Killefer, Case: 22STCP03981, Date: 2023-09-28 Tentative Ruling

Case Number: 22STCP03981    Hearing Date: September 28, 2023    Dept: 37

HEARING DATE:                 Thursday, September 28, 2023.

CASE NUMBER:                   22STCP03981

CASE NAME:                        Velone A. Poydras v. Donald L. McGowan

MOVING PARTY:                 Petitioner, Velone A. Poydras

OPPOSING PARTY:             None

TRIAL DATE:                        None

PROOF OF SERVICE:           None filed.

PROCEEDING:                      Motion to Vacate Dismissal

OPPOSITION:                        None filed.

REPLY:                                  None filed.

TENTATIVE:                         Petitioner’s Motion is granted.

Background

On November 7, 2022, Velone A. Poydras (“Petitioner”) filed a petition to release the mechanic lien placed on her property by Donald L. McDonald (“Respondent.”) After the respondent was served, default was entered against the Respondent on March 6, 2023, and an order voiding and canceling the mechanic lien was entered on May 2, 2023.

Petitioner’s counsel believed that upon entry of the May 2, 2023 Order, there was nothing left for the court to do. However, Petitioner asserts that the court in error set the OSC re-Entry Judgment for June 02, 2023, wherein another attorney, Shirley Chiu, appeared on behalf of the Petitioner and asked that the case be dismissed with prejudice. Petitioner’s counsel asserts that this was in error and requests that the June 2, 2023, dismissal be vacated.

Discussion

I.         Legal Standard

CCP § 473(b) provides for both discretionary and mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Mandatory relief from default, default judgment, or dismissal is available based on an attorney’s affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26 (“Mink”).) 

The mandatory provision states in the pertinent part:  

[T]he 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.

(CCP § 437(b).) 

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) Whenever relief is granted based on an attorney’s affidavit of fault, the court shall direct the attorney to pay reasonable compensatory legal fees and costs to the opposing party. (CCP § 473(b).)

II.        Motion to Set Aside/Vacate the Dismissal Entered on June 2, 2023

Petitioner seeks an order vacating the dismissal entered on June 2,2023, wherein this court dismissed the case with prejudice. Petitioner’s counsel, Levi. R. Uku, stated that he was unavailable for the June 2, 2023, OSC: re-entry of default judgment hearing because he had a hearing before the California Parole Board. (Uku Decl. ¶ 3.) Mr. Uko used the “Appearme App” to request a limited scope one-time special appearing counsel to appear on his behalf for the June 2, 2023, hearing. (Id. ¶ 4.) Shirley Chiu accepted the assignment and appeared at the hearing. (Id. ¶ 5.)

Mr. Uku states that Ms. Chiu was specifically instructed and authorized to ask the court to take the OSC:re-default judgment off-calendar since the May 2, 2023 Order voided and canceled the mechanic lien, and a judgment is no longer necessary.  (Uku Decl. ¶¶ 6, 7.) Mr. Uku asserts that Ms. Chiu was not instructed to dismiss the case, let alone dismiss it with prejudice. (Id. ¶ 8, Ex. B.) Mr. Uku only became aware of the dismissal when he checked the case status online on June 27, 2023. (Id. ¶ 9.)

Mr. Uku asserts that Ms. Chiu refused to sign a declaration claiming that the “incident happened a long time ago” and that as a result she was not prepared to sign any declaration. (Id. ¶¶ 12, 16, 18.) Mr. Uku asserts that Ms. Chiu did not have authority from him or the Petitioner to ask the court to dismiss the case with prejudice, and that Ms. Chiu acted in excess of her instructions and the court should vacate the June 2, 2023 Order. (Id. ¶ 20.) Mr. Uku asserts that no contractual relationship exists between Petitioner and Ms. Chiu and that fault lies with Mr. Uku for asking Ms. Chiu to appear on behalf of Petitioner without researching her background and professionalism. (Id. ¶¶ 21, 22, Ex. E.)

“The law strongly favors trial and disposition on the merits. Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.” (Mink, supra, 2 Cal.App.4th at p. 1343.)  

Petitioner asserts the Motion should be granted because there is no prejudice to Respondent since the subject of the petition, the Mechanic Lien, is stale and statutorily barred since Respondent failed to file an action to enforce the mechanic lien within the statutorily allowed time. (Mot. at 11:25-28.) Moreover, the court finds that Mr. Uku’s error in hiring another attorney to appear on a limited scope appearance for an OSC hearing is neglect that is excusable because “a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.)

Since the Plaintiff’s Motion was timely filed within six months and is based on an attorney’s affidavit of fault, relief is mandatory, and the court lacks the discretion to refuse relief. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226 [“‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation].” Therefore, Petitioner’s motion is granted.

Conclusion

Petitioner’s Motion is granted.

Dated: September __, 2023                                        _______________________________

                                                                                    Gail Killefer

                                                                                    Judge, Los Angeles Superior Court