Judge: Gregory Keosian, Case: 22STCV11221, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV11221    Hearing Date: August 9, 2023    Dept: 61

Plaintiff Arlen Gharakani’s Motion to Set Aside Dismissal is GRANTED.

Plaintiff to provide notice.

I.                   MOTION TO VACATE DISMISSAL

Code of Civil Procedure section 473, subdivision (b) states:

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 . . . 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.

Plaintiff Arlen Gharakani (Plaintiff) seeks relief from the order of dismissal entered on April 27, 2023, based on Plaintiff’s failure to appear at an OSC re: dismissal on the same date, and a prior failure to appear at a case management conference held on March 28, 2023. Plaintiff presents the declarations of his attorneys, John P. Fitzmorris and Stephen Vokshori, who state that the failure to appear at the March 28, 2023 hearing was the result of a failure to calendar the hearing following the appearance of Plaintiff’s counsel at the February 6, 2023 hearing at which it was scheduled. (Fitzmorris Decl. ¶¶ 9–13.) Plaintiff notes that the notice of ruling served by Defendants after the March 28 hearing does not state that an OSC re: dismissal of Plaintiff’s case has been scheduled, but rather states that a continued case management conference and an “OSC re dismissal of [Defendant] Vision Capital” shall take place on April 27, 2023. (Fitzmorris Decl. ¶ 18.) Both attorneys, in any event, deny receiving the notice of ruling until they located it on the court docket on May 2, 2023, after the dismissal was entered. (Fitzmorris Decl. ¶¶ 19–21; Vokshori Decl. ¶ 4.)

Defendants Victor Cuahutemoc Pena Jr. and Asset Default Management (Defendants) in opposition argue that the notice of ruling from the March 28, 2023 hearing was served by both mail and email, and that if relief is to be given pursuant to this motion, it must be pursuant to the mandatory provisions of Code of Civil Procedure § 473, subd. (b), and therefore sanctions must be provided to Defendants in the amount of $900.00. (Opposition at pp. 2–3.)

Plaintiff has shown entitlement to relief pursuant to the discretionary prong of Code of Civil Procedure § 473, subd. (b), for excusable neglect. The March 28 hearing was missed due to a calendaring error. Calendaring errors such as described by Plaintiff ordinarily fit within the meaning of “excusable neglect.” (See Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980 [describing how calendaring errors constitute excusable neglect].) And the April 27 hearing was missed due to lack of notice. Although Defendants claim to have served a notice of ruling and of the upcoming hearings on March 28, their notice of ruling is defective, and is rebutted by the declarations of Plaintiff’s counsel. Likewise, the claim of Defendants that the notice was served by email in addition to post is contradicted by the proof of service accompanying the notice of ruling, which states only that the notice was served by post.

The failure to appear for the hearings in question is therefore the product of excusable neglect, and the motion is therefore GRANTED.