TENTATIVE RULING

Plaintiff Jordanne Ho-Shue’s Motion to Set-Aside [sic] Court’s August 30, 2024 Order to Dismiss Plaintiff’s Complaint Based on the Mandatory Relief Under 473(b) is GRANTED in part. The order dismissing Plaintiff’s action on September 9, 2024 is set aside. Within thirty (30) days, Plaintiff shall file a First Amended Complaint complying with the Court’s order sustaining the demurrer to her complaint, or Plaintiff shall file a noticed motion to file an amended pleading. Failure to do so may result in a dismissal of the action.

Plaintiff Jordanne Ho-Shue to give notice. 

REASONING

Plaintiff Jordanne Ho-Shue (“Plaintiff”) moves the Court for an order setting aside its September 9, 2024 dismissing Plaintiff’s case with prejudice after a hearing on Defendants The Regents of the University of California, Jessica Luchenta, and Robert Weiler (“Defendants”)’s ex parte application to dismiss the entire action and enter judgment in Defendants’ favor on the ground that Plaintiff had not timely filed an amended complaint after the Court sustained Defendants’ demurrer to Plaintiff’s complaint. Plaintiff’s counsel Frank Bazadier provides a declaration attesting to his failure to file an amended complaint and stating that he is undergoing divorce proceedings. (Mot., Bazadier Decl. ¶¶ 5-7.) Defendants oppose the motion on the ground that Plaintiff has not shown sufficient factual support for the motion, and the proposed amendment is an entirely different claim than what was previously asserted.

Code of Civil Procedure section 473, subdivision (b), provides that “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 . . . 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.” Code of Civil Procedure section 473, subdivision (b), also provides that “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Notably, Plaintiff’s counsel only admits fault in failing to file the amended complaint; there are no specific statements of mistake, inadvertence, surprise, or neglect in failing to file the amended pleading. However, the Court reads the motion and accompanying declaration as constituting inexcusable neglect by Plaintiff’s counsel, and “a party is entitled to mandatory relief under [Code of Civil Procedure] section 473(b), even when the attorney error is inexcusable, so long as the attorney affidavit of fault shows the error was the fault of the attorney rather than the client.” When an attorney states his or her mistake, inadvertence, surprise, or neglect, relief is mandatory, and there is no requirement to state the reasons for that mistake, inadvertence, surprise, or neglect. Thus, Plaintiff is entitled to relief here.

However, the Court cannot allow the filing of the proposed amended pleading. Put simply, the proposed Amended Complaint is an entirely different action than what was filed in the initial complaint, and Plaintiff must file a noticed motion to amend the pleading in this way, as it does not comply with the Court’s ruling that Plaintiff may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Accordingly, Plaintiff Jordanne Ho-Shue’s Motion to Set-Aside [sic] Court’s August 30, 2024 Order to Dismiss Plaintiff’s Complaint Based on the Mandatory Relief Under 473(b) is GRANTED in part. The order dismissing Plaintiff’s action on September 9, 2024 is set aside. Within thirty (30) days, Plaintiff shall file a First Amended Complaint complying with the Court’s order sustaining the demurrer to her complaint, or Plaintiff shall file a noticed motion to file an amended pleading. Failure to do so may result in a dismissal of the action.