Judge: Holly J. Fujie, Case: 24STCV06970, Date: 2024-12-19 Tentative Ruling

Case Number: 24STCV06970    Hearing Date: December 19, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY:  Plaintiffs Natividad Rizo Lopez, Adelina Ordonez Hidalgo De Mejia and Ervin Roblero Lopez (collectively, “Plaintiffs”)

RESPONDING PARTY: None

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

BACKGROUND

             On March 20, 2024, Plaintiffs filed the operative complaint (the “Complaint”) against Defendants Jong Park (“Park”), City of Los Angeles, County of Los Angeles, Los Angeles Fire Department (“LAFD”) (collectively “Defendants”) and Does 1 through 10, alleging a cause of action for motor vehicle negligence.        

            On July 25, 2024, the Court issued a Minute Order ordering that a request for entry of default as to Park and LAFD be submitted by August 6, 2024. (7/25/2024 Minute Order) No entry of default was filed, prompting the Court to dismiss Park and LAFD without prejudice on August 14, 2024. (8/13/2024 Minute Order; 8/14/2024 Order of Dismissal)

On October 1, 2024, Plaintiffs each filed a motion to set aside the Court’s dismissal of Park (the “Motions”).

DISCUSSION

            “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.)

            Plaintiffs bring these Motions to set aside dismissal of Park on the ground that default was entered based on excusable mistake, inadvertence and neglect of Plaintiffs’ counsel, Azin Barzin (“Barzin”). This position is supported by the Declaration of Azin Barzin (“Barzin Decl.”). Barzin states that he mistakenly did not calendar the July 25, 2024 Minute Order and thus neglected to file the entry of default by August 6, 2024. (All Mots., Barzin Decl. ¶¶ 4-5.) Plaintiffs bring these Motions well within the six months after the dismissal was entered and they are accompanied by Barzin’s sworn affidavits attesting to his mistake. (CCP § 473, subd. (b).)

Plaintiffs do not, however, submit the request for entry of default. Under the mandatory provision of CCP section 473 subdivision (b), a request for relief must be made “in proper form” meaning it must be accompanied by the pleading proposed to be filed therein. (CCP § 473, subd. (b) [“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…] (emphasis added.)) This requirement is reinforced by case law, which interprets the phrase "in proper form" to include the necessity of submitting a proposed answer or other pleading with the motion for mandatory relief. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401.) Thus, the Motions are DENIED, without prejudice.  If Plaintiffs lodge the proposed request for entry of default prior to the hearing, the Motions will be GRANTED.