Judge: Kevin C. Brazile, Case: 22STCV17236, Date: 2022-09-29 Tentative Ruling

Hearing Date: September 29, 2022

Case Name: Calderon v. TF Broadway Limited Partnership, et al.

Case No.: 20STCV02609 

Matter: Motion to Set Aside Dismissal

Moving Party: Plaintiff Luis Calderon 

Responding Party: Unopposed

Notice: OK

Ruling: The Motion is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

The Court set an OSC re: Dismissal due to Settlement for June 9, 2022.  At this OSC hearing, there were no appearances, so the Court dismissed the action, without prejudice.

Plaintiff now seeks to set the dismissal aside, contending that his counsel had technical difficulties attending the June 9, 2022, OSC hearing and later discovered that Defendant failed to sign the parties’ settlement agreement.  Plaintiff contends the dismissal was a result of mistake, negligence, or inadvertence; Plaintiff has submitted an attorney declaration of fault.  

Code Civ. Proc. § 473(b) provides in relevant 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 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 court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“[A]n attorney affidavit of fault under the mandatory relief provisions of section 473, subdivision (b) need not include an explanation of the reasons for the attorney's mistake, inadvertence, surprise, or neglect.”  (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal. App. 4th 432, 443.)  Moreover, under this mandatory provision “it does not matter whether [counsel’s] neglect was excusable or inexcusable.”  (Ibid.) 

For the mandatory provision of Code Civ. Proc. § 473(b) to apply, the dismissal must “be the procedural equivalent of [a] default[] . . . .”  (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 618.)  Examples of dismissals which are the equivalent of a default are dismissals resulting from counsel’s failure to respond to discovery such that terminating sanctions are imposed (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 719), counsel’s failure to oppose a dismissal motion (Bernasconi Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082), and counsel’s failure to tender fees for transfer of venue.  (Gee v. Estate of Jewett (2016) 6 Cal.App.5th 477, 491.)

Plaintiff has submitted a sufficient declaration from his counsel explaining that this case was dismissed when counsel failed to attend the June 9, 2022, OSC due to technical difficulties.  (Duane Decl. ¶¶ 3-4.)  Thus, the Motion is granted.  (Code Civ. Proc. § 473(b).)

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.