Judge: Linda S. Marks, Case: 2020-01170628, Date: 2023-06-12 Tentative Ruling
Motion to Set Aside/Vacate Dismissal
Plaintiff BERNICE GONZALEZ and ALBERTO CONTRERAS seek an order setting aside dismissal of the entire action which occurred without prejudice on April 18, 2022.
Motion is DENIED.
The court must vacate dismissals “resulting” from the attorney's “mistake, inadvertence, surprise, or neglect.” [CCP § 473(b)]
The major limitation on use of an attorney “affidavit of fault” is that the court may deny relief if it finds “the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” [CCP § 473(b) (emphasis added)]
This provision tests both the credibility of the declaration and the causation of the default. [Milton v. Perceptual Develop. Corp. (1997) 53 CA4th 861, 866-867]
The application for mandatory relief based on an attorney affidavit of fault must be made “no more than six months after entry of judgment.” [CCP § 473(b) (emphasis added)]
“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) One ground for equitable relief is extrinsic mistake which is broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Ibid.) “ ‘To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second [], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last [], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’ [Citation.]” (Id. at p. 982.)
The trial court has the inherent equitable power to set aside a default judgment based on extrinsic fraud. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) “ ‘Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of
extrinsic fraud are: ... failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing the other from having his day in court.’ [Citations.] Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense. [Citations.] (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.)
There need be no actual “fraud” or “mistake” in the strict sense. [Marriage of Park (1980) 27 C3d 337, 342; see Sporn v. Home Depot USA, Inc., supra, 126 CA4th at 1300, 24 CR3d at 785.]
Nevertheless, where “a party's own negligence allows the fraud or mistake to occur” there will be no relief. [Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29.]
A review of the Court file reveals the following:
· 11/18/2020 Complaint filed.
· 12/23/2020 Clerk mails Notice of Hearing (Status Conference) to Plaintiff’s counsel at DOWNTOWN LA LAW GROUP 601 N VERMONT AVENUE LOS ANGELES, CA 90004. ) (See ROA 7)
· 2/28/2022 there being no appearances by any party the Court sets An Order to Show Cause re: Dismissal for Failure to Serve is scheduled for 04/18/2022 at 01:30 PM in Department C25.(See ROA 11.)
· On 3/4/2022 the Clerk provided notice of the 2/28/2022 minute order via email at daniel@downtownlalaw.com. (ROA 12.)
· 4/18/2022 there being are no appearances by any party at the OSC, the Court ordered the entire action dismissed without prejudice. (ROA 16.)
· 4/26/2022 the Clerk provided notice via email to the same email address. (ROA 17.)
· 1/19/2023 this Motion was filed via ex parte. (ROA 21.)
This motion was not filed until 1/19/2023 (9 months later). Therefore, it appears untimely pursuant to the authority cited above.
The Court declines to exercise its equitable power to vacate the dismissal as the mistakes herein were intrinsic.
The Supplemental Declaration of Azizi now provides the following:
Decl. of Azizi:
5. When notice of the original status conference of February 28, 2022, was emailed by the clerk, on December 23 , 2020, a calendaring error occurred, causing the status conference to be calendared on February 28, 2023. Unfortunately, we relied heavily on this calendared date, thus missing the February 28, 2022, Status Conference. In January of 2023 , we discovered the matter was dismissed upon our auditing of the case file, in preparation for what we believed to be the upcoming Status
Conference in February 2023. Upon discovering the Dismissal through our case audit, we immediately moved to vacate the dismissal on January 19, 2023.
6. Around the time that this incident occurred, the firm was updating its systems from the end of 2021 into early 2022 from AbacusLaw to File Vine. For reasons unknown is appears the firm's system malfunctioned when it came to emails sent to several email addresses during this time period including daniel@downtownlalaw.com. There are a few possibilities for why this occurred.
It should be noted that as to the initial status conference, the Court did not email the Notice of Hearing, but rather mailed it. While it might be plausible that a calendaring error occurred which scheduled the Status Conference for 2/28/2023 instead of 2/28/2022, the failure to receive the Clerk’s notices via email on 2/28/2022 and 3/4/2022 seems far fetched. Moreover, the failure to discover the dismissal until January 2023 (9 months later) is astonishing. Counsel basically filed the case in November 2020 and did not check on the status of the case until January 2023.
Ultimately, it is the attorney who is responsible for monitoring their cases after filing with or without notices from the Court. Even if counsel was not receiving emails / notices from the Court, it would appear that over the course of two (2) years counsel should have followed up and manually monitored the case. [Note: Counsel indicates that they have been trying to serve Defendant since 2021. Supp. Decl, Azizi¶7.]
Also, counsel’s claim that there was a software malfunction and he was not receiving emails pwould have happened on several cases not just the instant case and should have raised a heightened concern to check on status of the case. It is incomprehensible that counsel would not have been alerted at some prior to two years that something was amiss.
Attorney Azizi declares, “A search of the firms email system failed to turn up the clerk's service of the notice of dismissal.” (Decl. Azizi¶6.) However, this statement does not unequivocally state that Attorney Azizi did not receive, via his email address, daniel@downtownlalaw.com., the Clerk’s 2/28/2022 and/or 3/4/2022 notices.
All in all, failure to discover the dismissal and file this Motion within the 6-month period is the result of intrinsic mistake. The excuse presented by counsel is simply not satisfactory.
Clerk to give notice.