Judge: Jon R. Takasugi, Case: 20STCV35171, Date: 2022-09-12 Tentative Ruling

Case Number: 20STCV35171    Hearing Date: September 12, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiffs’ motion to set aside is GRANTED.

On 9/14/2020, Plaintiffs Celine Cohan and RCB Corporation (collectively, Plaintiffs) filed suit against Mercedes-Benz USA, LLC (Defendant) , alleging: (1) breach of implied warranty of merchantability; (2) breach of express warranty; and (3) fraudulent inducement—concealment.

            On 7/14/2022, Plaintiffs case was dismissed without prejudice after Plaintiffs failed to appear at an OSC re: dismissal.

            Now, Plaintiffs move to set aside dismissal.

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

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

The mandatory relief provision of Code of Civil Procedure section 473 subs. (b) provides, in part: 

Notwithstanding any other requirements of this section, 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..., or (2) resulting default judgment or dismissal entered.... 

Case law instructs that so long as counsel is willing to fall on their sword, relief is mandatory. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210 (Section 473's provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse. Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.).) The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client. (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.) 

            Here, Plaintiffs’ counsel submitted a declaration stating that he failed to appear for the 7/14/2022 hearing due to a calendaring error. (Barry Decl., ¶ 4.) Immediately upon learning of the dismissal, Plaintiffs' counsel reached out to defense counsel on 7/18/2022, requesting Defendant to stipulate to set aside the Court's dismissal. (Barry Decl., Exh. 1.)

            In opposition, Defendant claims that relief should not be mandatory, and that Plaintiffs “have not identified the category, i.e. mistake or inadvertence, under which they seek relief, let alone made a showing they are entitled to relief..” (Opp. 6: 19-20.) However, Plaintiffs’ counsel’s declaration clearly sets forth the reason for his failure to appear at the OSC, and took responsibility for the dismissal. Moreover, while the Court understands Defendant’s frustration at Plaintiffs’ counsel’s lack of diligence, Defendant itself notes that time and resources have been spent litigating this action, and a preliminary settlement agreement was reached nearly a year ago. As such, it would be prejudicial to Plaintiffs to deny the opportunity for settlement (or adjudication) when this case was dismissed solely because of Plaintiffs’ counsel failure to appear at an OSC.  

            Given counsels’ declaration taking responsibility for the dismissal, relief is mandatory. (Abers, supra, 217 Cal.App.4th at p. 1210.)

            Based on the foregoing, Plaintiffs’ motion to set aside is granted.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.