Judge Holly J. Fujie, Case Number: 24STCV18538, Date: 2025-05-14 Tentative Ruling

This action arises out of an employment relationship. Plaintiff sues Flawless Framing Systems, Inc., (“Flawless Framing”) Drake J. Mccullough dba Flawless Framing Systems, Guy J. Mccullough dba Flawless Framing Systems and Does 1 through 20, inclusive, (collectively, “Defendants”) pursuant to an August 5, 2024 complaint (“Complaint”) alleging causes of action for: (1) discrimination in violation of Gov. Code §§ 12940 et seq.; (2) retaliation in violation of Gov. Code §§ 12940 et seq., (3) failure to prevent discrimination and retaliation in violation of Gov. Code § 12940 subd. (k); (4) failure to provide reasonable accommodations in violation of Gov. Code §§ 12940 et seq.; (5) failure to engage in a good faith interactive process in violation of Gov. Code §§ 12940 et seq.; (6) for declaratory judgment; (7) retaliation [Lab. Code § 98.6]; (8) wrongful termination in violation of public policy; (9) failure to pay wages [Lab. Code §§ 201, 1194]; (10) failure to pay overtime compensation [Lab. Code §§ 510, 1194]; failure to provide rest periods [Lab. Code § 226.7]; (12) failure to pay sick time [Lab. Code § 246]; (13) failure to provide itemized wage and hour statements [Lab. Code §§ 226, et seq.]; (14) waiting time penalties [Lab. Code §§ 201-203]; (15) failure to permit inspection of personnel and payroll records [Lab. Code § 1198.5]; and (16) unfair competition [Bus. & Prof. Code § 17200 et seq.]

On February 19, 2025, Plaintiff filed the instant motion to vacate order of 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.)

Plaintiff brings this Motion to set aside the order of dismissal of Flawless Framing on the ground that dismissal was entered based on excusable mistake, inadvertence and neglect of Plaintiff’s counsel Deborah J. Torosi (“Counsel”). This position is supported by Counsel’s declaration. The Court’s January 6, 2025 Minute required Plaintiff to submit a request for default by January 8, 2025. Counsel states that she mistakenly mis-calendared the deadline and failed to notify the court of the new date of service as to Flawless Framing. (Torosi Decl., ¶ 11.)

The Court finds that the dismissal was the result of 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 her mistake.

The Motion is GRANTED. The Court orders that the dismissal of Flawless Framing Systems, Inc. be VACATED. The Court will hold a case management conference on June 23, 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