Judge Lee S. Arian, Case Number: 22STCV24914, Date: 2024-12-03 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV24914, Date: 2024-12-03 Tentative Ruling

Case Number: 22STCV24914 Hearing Date: December 3, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO SET ASIDE

Hearing Date: 12/3/24

CASE NO./NAME: 22STCV24914 DOROTHY COTTRELL vs SOON YULL KWUN, et al.

Moving Party: Plaintiff

Responding Party: Defendant Soon Yull Kwun

Notice: Sufficient

Ruling: Granted

Background

On July 11, 2024, Plaintiff’s counsel did not appear at the final status conference. With no appearances by or communication from Plaintiff or Plaintiff’s counsel explaining the absence, the Court ordered the trial date of July 15, 2024, to remain on calendar. The Court further indicated that failure to appear at trial would result in dismissal of the case. Plaintiff did not appear at trial on July 15, and the Court dismissed the case. Plaintiff now moves the Court for mandatory relief.

Plaintiff’s counsel, Farsheed Shomloo, filed a declaration stating: "On June 2, 2024, Plaintiff’s attorney, Mr. Paul Kingston, suffered a stroke with devastating effects. At that time, he asked me to assist him with some of his cases. Unfortunately, in the last week of May 2024, I was diagnosed with lymphoma. I began my chemotherapy treatment the day after Mr. Kingston's stroke, on June 3. I had eight sessions in June and four sessions in July 2024. The first and second rounds of chemotherapy in July were on July 8 and 9. On July 11, the date of this case's Final Status Conference, I was severely suffering from the side effects of chemotherapy and, despite my best intentions, I could not, even telephonically, attend the hearing."

Legal Standard

Section 473, subdivision (b), provides for two distinct types of relief. “Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against” a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,” the court shall vacate any “resulting default judgment or dismissal entered.” The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616.)

Its purpose “‘was to alleviate the hardship on parties who¿lose their day in court¿due solely to an inexcusable failure to act on the part of their attorneys.’” [Citation.] An application for¿mandatory¿relief must be filed within six months of entry of judgment and be in proper form, accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. [Citation.] The defaulting party “must submit sufficient evidence that the default was actually caused by the attorney's error. [Citation.] ‘If the prerequisites for the application of the¿mandatory¿relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’” [Citation.]” (Henderson v. Pacific Gas & Electric Co.¿(2010) 187 Cal.App.4th 215, 226.)

Discussion

Plaintiff has met all the requirements of mandatory relief. The dismissal occurred on July 15, 2024, and the motion to set aside was filed on October 28, 2024, within the six-month deadline. Counsel filed a declaration attesting to mistake, inadvertence, surprise, or neglect, which here involves a combination of surprise and neglect. Counsel was surprised by the effects of chemotherapy and neglected to anticipate such effects by arranging for someone to take over the case. The court order is a dismissal which falls within the narrow exception carved out for mandatory relief. The Court finds that counsel’s failure to appear at the final status conference and trial led to the dismissal of the case, as reflected in the Court’s minute orders.

Defendant filed an opposition arguing that relief should not be granted because counsel’s conduct fell below the professional standard, which does not qualify as excusable neglect under California Code of Civil Procedure section 473(b). Specifically, Defendant contends that Plaintiff’s counsel failed to associate or consult another attorney when his health issues became apparent. Defendant cites Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 159 Cal.Rptr.3d 469, asserting that section 473(b) applies only to “relief from attorney error that is fairly imputable to the client, i.e., mistakes anyone could have made.”

However, under the mandatory relief provision of section 473(b), Plaintiff is not required to show excusable neglect, only neglect. The scope of attorney conduct qualifying for relief under the mandatory provision is broader than under the discretionary provision and includes inexcusable neglect (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616). Moreover, Defendant’s reliance on Toho-Towa is misplaced, as the case addresses only discretionary relief. Specifically, Toho-Towa states, “the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client’” (Toho-Towa Co. v. Morgan Creek Prods., Inc. (2013) 217 Cal.App.4th 1096, 1112). Thus, the analysis under mandatory relief differs, and the Court finds that Plaintiff has met all the requirements for mandatory relief. Accordingly, the motion is granted.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.