Judge Holly J. Fujie, Case Number: 24STCV08316, Date: 2025-04-22 Tentative Ruling

MOVING PARTY: Plaintiff F.E. Distribution, Inc., a Texas Corporation dba Fortune Energy (“Plaintiff”)

The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed by April 9, 2025. (Code of Civil Procedure (“CCP”), § 1005, subd. (b) [opposition must be filed at least nine court days prior to the hearing].)

On April 3, 2024, Plaintiff filed a complaint (the “Complaint”) against Defendants Heritage Construction Services Inc., Klayton Cole Marchant, Daniel Isbell, and Does 1 through 15 (collectively, “Defendants”) for: (1) Breach of Contract; (2) Open Book Account; (3) Account Stated; and (4) Quantum Valebant.

On February 6, 2025, Plaintiff filed the instant motion to vacate dismissal (the “Motion”). The Motion is unopposed.

CCP section 473 subdivision (b) provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (CCP, § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

“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. 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.” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905 [internal citations omitted].)

The mandatory provision of section 473, subdivision (b), states that “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 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.)

Plaintiff brings this Motion to vacate the order of dismissal entered in this case on the grounds that the dismissal was entered due to the mistake and inadvertence of Plaintiff’s counsel, Leah S. Schoen (“Counsel”) to resubmit the default judgment application by January 23, 2025. This position is supported by Counsel’s declaration. Counsel states that she received the order from the Court stating that the default judgment was to be resubmitted by January 23, 2025, but inadvertently did not calendar the deadline. (Schoen Decl., ¶¶ 2-3, 6.)

The Court finds that the dismissal was the result of Plaintiff’s Counsel’s mistake, inadvertence or excusable neglect. The Motion was timely filed within six months of the dismissal. In addition, the Motion is accompanied by Counsel’s sworn affidavit attesting to her mistake and a copy of the amended default judgment application proposed to be filed. (Schoen Decl., Ex. B.)

The Motion is GRANTED. The Court orders that the dismissal be vacated and that the Complaint be reinstated. Plaintiff shall re-file the default judgment application within ten days of the date of this order.

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