Judge Holly J. Fujie, Case Number: 22STCP01600, Date: 2025-02-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition or reply has been filed.

This action, filed on May 2, 2022, arises from partnership agreement between Simmons and defendants Desmond Lindsey (“Lindsey”) and Ironstep Construction and Engineering, LLC (“Ironstep”). The second amended complaint (“SAC”) alleges causes of action for: (1) breach of partnership agreement; (2) breach of fiduciary duty; (3) misrepresentation (fraud); (4) breach of implied covenant of good faith and fair dealing; (5) declaratory relief; (6) unjust enrichment; (7) negligence; (8) constructive trust; and (9) accounting.

On April 25, 2024, the Court issued a Minute Order ordering counsel to file a declaration as to why the case should not be dismissed by May 1, 2024. (4/25/24 Minute Order.) No declaration was filed, prompting the Court to dismiss this action without prejudice on May 7, 2024. (5/7/24 Minute Order.)

On November 7, 2024, Simmons filed the instant motion to set aside dismissal (the “Motion”). The Motion is unopposed.

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse. [Citation.] The statute is remedial and should be liberally applied to carry out the policy of permitting trial on the merits, but the moving party has the burden of showing good cause. [Citations.]” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905.)

Code of Civil Procedure (“CCP”) section 473, subdivision (b) provides that a court must vacate any resulting default judgment or dismissal entered against an attorney’s client whenever an application for relief is made no more than six months after entering of judgment, is in proper form, and is accompanied by the attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, unless the court finds that the fault or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (CCP § 473, subd. (b).) The affidavit need only attest to the attorney’s mistake, inadvertence, surprise, or neglect in causing the default or default judgment—the reasons for it need not be explained. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) Attestation that one of these reasons existed is sufficient to obtain relief unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) This is because “the purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why.” (Martin Potts, supra, 244 Cal.App.4th at p. 439.)

For example, California courts have determined that an attorney’s conscious decision not to answer a complaint on behalf of his or her client is grounds for mandatory relief under this statutory subdivision. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010.) The lawyer’s negligence need not be the exclusive or sole cause of the client’s loss so long as it was in fact a proximate cause. (Milton v. Perceptual Develop. Corp. (1997) 53 Cal.App.4th 861, 867.) However, mandatory relief under section 473, subdivision (b) may be denied where dismissal [or default] resulted from intentional conduct rather than a mistake, inadvertence, surprise, or neglect. (See Pagarigan v. Aetna U.S. Healthcare of Cal., Inc. (2007) 158 Cal.App.4th 38, 45-46.)

Simmons brings this Motion to set aside dismissal of the action based on the ground that default was entered based on excusable mistake, inadvertence and neglect of Simmons’ counsel Mainak D’Attaray (“Counsel”). This position is supported by Counsel’s declaration. Counsel states that after Simmons and Chase stipulated to dismiss Chase without prejudice, his office inadvertently removed all future dates in this action erroneously deeming the matter to be closed. (D’Attaray Decl. ¶¶ 3-4.) Counsel states that the action is still active as to the remaining defendants. (D’Attaray Decl. ¶ 5.)

The Court finds that the dismissal of the SAC was the result of Simmons’ Counsel’s mistake, inadvertence or excusable neglect. In addition, the Motion was timely filed within six months of the dismissal and is accompanied by Counsel’s sworn affidavit attesting to his mistake.

The Motion is GRANTED. The Court orders that the dismissal be vacated, and that the Second Amended Complaint be reinstated. The Court will hold a case management conference on March 10, 2025, at 8:30 a.m. in this department.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court