Judge: Gregory Keosian, Case: 21STCV39315, Date: 2022-09-08 Tentative Ruling
Case Number: 21STCV39315 Hearing Date: September 8, 2022 Dept: 61
Plaintiff
Grace Cherry’s Motion for Relief from Dismissal is GRANTED.
I.
MOTION FOR RELIEF FROM DISMISSAL
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.
. . .
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
court shall, whenever relief is granted based on an attorney's affidavit of
fault, direct the attorney to pay reasonable compensatory legal fees and costs
to opposing counsel or parties. However, this section shall not lengthen the
time within which an action shall be brought to trial pursuant to Section
583.310.
(Code Civ. Proc. §
473, subd. (b).)
Plaintiff Grace
Cherry moves for relief from this court’s order of April 15, 2022, dismissing
Plaintiff’s case with prejudice pursuant to the demurrer of Defendants Velur
Enterprises and Velur Properties LLC. The basis for the motion is the
declaration of Plaintiff’s attorney, Dennis Russell, who states that the
demurrer was sustained without leave to amend based on his failure to oppose
it, which was itself the product of his own error in calendaring the hearing
for 2023 instead of 2022. (Russell Decl. ¶ 5.)
Defendants in
opposition contend that this is an improper and untimely motion for
reconsideration, and that the error of Plaintiff’s counsel was neither
excusable nor subject to mandatory relief, as mandatory relief under section
473 does not permit expansion of applicable statutes of limitations.
(Opposition at pp. 6–11.)
Defendants’
arguments are unpersuasive. This is not a motion for reconsideration based on “new
or different facts, circumstances, or law,” but a motion for relief from
dismissal based on an attorney’s affidavit of fault. (Code Civ. Proc. § 1008,
subd. (a).)
The mistake
described by Plaintiff’s counsel is eligible for discretionary and mandatory
relief. Excusable neglect is that which one might expect to be committed by “a
reasonably prudent person under the same or similar circumstances.” (Comunidad
en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132.)
And calendaring errors such as described by Plaintiff’s counsel have been held
to be excusable. (Id. at p. 1135 [calendaring error “is a mistake anyone
could have made”], internal quotation marks omitted.)
Mandatory relief is
also available. Defendants rely on authority stating that the mandatory relief
provision of section 473, subd. (b), is available only for dismissals that are
“procedurally equivalent to a default,” and points to language stating that no
relief is available to a dismissal “following the sustaining of a demurrer
without leave to amend on the ground that the statute of limitations had run.”
(Opposition at pp. 4–5, citing Jackson v. Kaiser Foundation Hospitals, Inc.
(2019) 32 Cal.App.5th 166, 174–175.) But Defendants misread their authority:
the applicable case held that mandatory relief was not available when attorney
fault had caused the complaint to be filed beyond the limitations period, not
when attorney fault had let a demurrer go unopposed. (See Castro v.
Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th
927, 933 [mandatory relief provision was not intended to “create a loophole through
which a plaintiff may escape the bar of the statute of limitations”].) By
contrast, Plaintiff here seeks not an exception to the limitations period, but
an opportunity to amend a complaint to answer the objections of a demurrer that
a scheduling error prevented her from opposing. Such an error is grounds for
mandatory relief: “[A] dismissal may be entered where a plaintiff fails to
appear in opposition to a dismissal motion, and relief is afforded where that
failure to appear is the fault of counsel.” (Jackson, supra, 32
Cal.App.5th at p. 175.) This is just such a scenario.
Defendants finally
argue that the proposed amended complaint fails to address the limitations
defects that formed the basis for this court’s ruling, as Plaintiff’s new FAC
fails to allege new facts supporting application of the delayed discovery rule.
(Opposition at pp. 10–11.)
But the new
complaint does adequately plead application of the rule. “A plaintiff
whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the
time and manner of discovery and (2) the inability to have made earlier
discovery despite reasonable diligence.”
(Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal.4th 797, 807.) Specifically, where the prior iteration of her
complaint provided no explanation for why Plaintiff could not have discovered
the real value of her properties before
selling them in 2021, the proposed FAC states that Plaintiff was prevented from
inquiring into their real value by Defendants, who repeatedly urged her not to
attempt to sell the properties, but to wait for mail-in offers and
solicitations from more desperate buyers, which they assured her other nearby
property owners were receiving. (Proposed FAC ¶ 18.) Plaintiff has thus
adequately alleged the time and manner of discovery, as well as the reasons
such discovery could not have been made earlier.
The motion for relief from dismissal is therefore GRANTED.