Judge: Joel L. Lofton, Case: 20GDCV00865, Date: 2022-12-09 Tentative Ruling

Case Number: 20GDCV00865    Hearing Date: December 9, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 9, 2022                               TRIAL DATE:  No date set.

CASE:                         STEPHEN J. MILLER, an individual, v. DIANE CARMENATE, an individual and DOES 1 to 10, inclusive.

CASE NO.:                 20GDCV00865

EX PARTE APPLICATION TO SET ASIDE DISMISSAL

MOVING PARTY:              Plaintiff Stephen J. Miller

RESPONDING PARTY:      Defendant Diane Carmenate

SERVICE:                              Filed November 16, 2022

OPPOSITION:                       Filed November 30, 2022

REPLY:                                   No reply filed.

RELIEF REQUESTED

            Plaintiff files this ex parte application to set aside the dismissal entered on November 2, 2022.

BACKGROUND

             This case arises out of Plaintiff Stephen J. Miller’s (“Plaintiff”) claim that Defendant Diane Carmenate (“Defendant”) failed to pay him for legal services. Plaintiff alleges that he was retained by Defendant to represent her in a family litigation case. Plaintiff alleges that Defendant agreed to pay $350.00 per hour. Plaintiff alleges that Defendant has failed to pay, leaving an unpaid balance of $166,019.57.

            Plaintiff filed this complaint on October 15, 2020, alleging two causes of action for breach of contract and common counts.

TENTATIVE RULING

            Plaintiff’s ex parte application to set aside dismissal is GRANTED.

LEGAL STANDARD

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)  The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant part: “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.” 

DISCUSSION

             On September 19, 2022, Defendant filed a motion to dismiss the present case against her based on her statement that Plaintiff failed to comply with Business and Professions Code section 6201. On November 2, 2022, a hearing was held on the motion, where Plaintiff failed to appear or submit an opposition.

            Plaintiff provides that he accidentally missed seeing the notice of the motion and thus failed to appear for the hearing. (Miller Decl. ¶¶ 8-9.) He also provides that he was experiencing family hardship and had contracted Covid-19 in the week leading up to the time of the hearing. (Id. ¶¶ 10-11.) He also provides he believed that the next action pending in this present case was the mediation ordered by this Court on August 31, 2022. (Id. ¶ 8.)

            Under the circumstances, Plaintiff has demonstrated that his failure to respond to the motion to dismiss and to appear at the hearing was caused by his mistake, inadvertence, or excusable neglect.

            However, that showing, in and of itself, does not address the underlying reason Defendant’s motion to dismiss was granted. In her motion, Defendant had claimed that she never received a notice of her right to arbitrate in compliance with Business and Professions Code section 6201.

            In this present motion, Defendant provides that he had mailed a notice of her right to arbitrate on May 1, 2020, to the same address Plaintiff was served her summons over a year later in 2021. (Miller Decl. ¶ 4, Exhibit B.) While Plaintiff’s declaration in the present case does not establish that he did, as a matter of fact, serve Defendant with the notice of arbitration, it does counterbalance Defendant’s claim that she never received the notice. Further, as provided by the decision in Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1090, dismissal under Business and Professions Code section 6201 is discretionary. Lastly, Business and Profession Code section 6201 provides that an attorney “shall forward” the notice to the client “prior to or at the time of service of the summons or claim”. Based on Plaintiff’s declaration, it appears that he, at the very least, attempted to comply with Business and Professions Code section 6201 by sending Defendant a copy of the written notice prior to filing this case.

            Plaintiff has demonstrated his failure to respond to the motion to dismiss was a result of a mistake, inadvertence, or excusable neglect. Further, Plaintiff has demonstrated that he sought to comply with Business and Profession Code section 6201, which at minimum, contrasts Defendant’s claim she never received the written notice.

CONCLUSION

            Plaintiff’s ex parte application to set aside dismissal is granted.

Dated:   December 9, 2022                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court