Judge Layne H. Melzer, Case 2022-01251635 2023-06-15 Tentative Ruling

Judge: Layne H. Melzer, Case: 2022-01251635, Date: 2023-06-15 Tentative Ruling

Plaintiff Victor M Casarrubias

Motion to Vacate

The court grants Plaintiff Victor M. Casarrubias’ Motion to set aside the 10/10/22 dismissal of his Complaint.

Merits

The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” [CCP § 473(b)]

Relief under CCP § 473(b) is also available to plaintiffs. In 1992, § 473 was amended and the words "or dismissal" added to subdivision (b)(2). It appears that this phrase was added to the statute to give parity to plaintiffs whose attorneys' neglect, surprise, or inadvertence caused them to lose the opportunity to pursue their cases. [See Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3296 (1991-92 Reg. Sess.] as amended May 4, 1992, p. 2 [“The State Bar is the source of [this] provision… The Bar states that it is illogical and arbitrary to allow mandatory relief for defendants when a default judgment has been entered against them due to defense counsel's mistakes and to not provide comparable relief to plaintiffs whose cases are dismissed for the same reason."]). (Yeap v. Leake (1997) 60 Cal. App. 4th 591, 600 (abrogated on other grounds by Hossain v. Hossain (2007) 157 Cal. App. 4th 454).

Thus, relief is available from an order of dismissal when it is the “practical equivalent of a default judgment.” [Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 CA3d 725, 736.]

The outside time limit for seeking relief under § 473(b) is 6 months. This limit is jurisdictional in the sense that the court has no power to grant relief after this time regardless of whether an “attorney affidavit of fault” is filed or how reasonable the excuse for the delay. [CCP § 473(b); Austin v. Los Angeles Unified School Dist. (2016) 244 CA4th 918, 928; Davis v. Thayer (1980) 113 CA3d 892, 901—as used in § 473(b), “six months” means 182 days].

Here, the Motion is timely.

As to the merits, Plaintiff’s attorney committed positive misconduct and abandoned this case through no fault of Plaintiff.

Plaintiff Victor M Casarrubias filed his Complaint against Defendant Lateese Mariah Perry on 3/24/22 for injuries resulting from a car accident. Plaintiff was represented by at all times by attorney Victor W. Luke of the Law Offices of Victor W. Luke APLC.

A CMC was set for 9/19/22. On that date, Plaintiff’s Counsel failed to appear. (ROA 18). The court set an OSC re dismissal for 10/10/22. (Id.) Plaintiff’s Counsel again failed to appear the case was dismissed on 10/10/22. (ROA 22).

On 3/29/23, Plaintiff filed a substitution of Counsel to be in pro per. (ROA 37). He filed this Motion on the same date.

If the attorney's neglect amounts to “positive misconduct” toward the client, and the client is relatively free from negligence, then, even in the absence of an “attorney affidavit of fault”, the client may be entitled to relief under § 473(b). The theory is that the “positive misconduct” terminates the attorney-client relationship, so that the attorney's neglect is not imputed to the client. [Daley v. County of Butte (1964) 227 CA2d 380, 391.]

Here, after consideration of the relevant factors, the court grants the Motion. (See Seacall Develop., Ltd. v. Santa Monica Rent Control Bd. (1999) 73 CA4th 201, 205; Carroll v. Abbott Laboratories, Inc. (1982) 32 C3d 892, 898.]

Not only did Plaintiff’s Counsel fail to appear when ordered, he also was not able to appear because he was suspended on 4/23/22 and ineligible to practice law for the remainder of the time until the dismissal. The legal representation existed only in a “nominal and technical sense.” [See Daley v. County of Butte, supra, 227 CA2d at 391-392.]

Thus, the Motion is granted. The case is returned to the civil active list. Plaintiff is ordered to properly serve Defendant with the Summons and Complaint. The case will be transferred to the inventory of a different unlimited civil judge pursuant to a separate minute order. Plaintiff is ordered to provide notice of this reassignment to the defendant upon receipt by Plaintiff of the notice of assignment.