TENTATIVE RULING

Plaintiff Victoria Marie McGrath’s Motion to Set Aside Judgment is DENIED.

Plaintiff Victoria Marie McGrath to give notice.

REASONING

Plaintiff Victoria Marie McGrath (“Plaintiff”) moves the Court to set aside the June 5, 2024 order dismissing this action pursuant to a voluntary request for dismissal with prejudice filed by Plaintiff on that date. On May 7, 2024, Defendants Sarah Field and Ann McCulloch (“Defendants”) filed a notice of acceptance of Plaintiffs’ offer to compromise pursuant to Code of Civil Procedure section 998, which would result in a judgment in Plaintiff’s favor for $25,000.00. Plaintiff argues here that the dismissal was the result of mistake, inadvertence, surprise, and excusable neglect because Plaintiff’s counsel received information that Defendants’ per person liability insurance limits were $25,000.00, but Plaintiff was informed by defense counsel later than Defendants’ policy limits are not in the amount of $25,000.00. 

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 . . . 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.” Alternatively, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” An application for such relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

First, as to the mandatory relief provision within Code of Civil Procedure section 473, subdivision (b), the general goals “are to relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.) While discretionary relief “is available for voluntary judgments and dismissals,” the “mandatory relief provision is unavailable to undo [the plaintiff’s] voluntary dismissal of [his] action.” (Id. at pp. 174, 177.) Notably, even if the mandatory relief provision was applicable here, which it is not, the statute makes clear that the attorney’s sworn affidavit must attest to his or her mistake, inadvertence, surprise, or neglect, and Plaintiff’s counsel provides only a conclusory statement that the dismissal was a result of his mistake, inadvertence, surprise, and neglect (Mot., Robin Decl. ¶ 12) without describing how or why the dismissal was the result of mistake.

As to the discretionary relief provision of Code of Civil Procedure section 473, subdivision (b), “[i]n order to qualify for discretionary relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419, brackets omitted.) Further, “[a] party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney’s negligence is imputed to the client. The inexcusable neglect of an attorney is usually not a proper basis for granting the client’s motion under section 473.” (Ibid., quotation marks and citations omitted.)

Put simply, the Court lacks a basis to conclude Plaintiff’s counsel’s mistake was excusable here. As Plaintiff concedes, defense counsel failed to disclose the amounts of the policy limit, and Plaintiff’s counsel merely concluded the limit was $25,000.00 after conducting a policy search using a company called ML Research Group that purportedly performs policy searches to obtain such information. (Mot., Robin Decl. ¶¶ 3, 5, Exs. 1, 3.) When Plaintiff’s counsel asked defense counsel to confirm this was the amount, after the dismissal had been filed and entered, defense counsel stated it was not, and there had been no communication from Plaintiff’s counsel stating that the settlement offer was contingent on there being a $25,000.00 policy limit. (Mot., Robin Decl. ¶ 3, Ex. 1.) Plaintiff’s counsel failed to conduct any discovery to learn the policy limits, failed to confirm the amount of the policy limits before filing the dismissal, failed to make the settlement contingent on such information being accurate, and chose to use a search company that shows no ability to confirm the policy limits; in fact, the letter from ML Research Group includes a disclaimer that it “makes no warranty or guarantee” as to the information provided, and it advises that “[l]egal, strategic, and/or financial decisions should not be based solely upon the information provided” in the letter (Mot., Robin Decl. ¶ 5, Ex. 3).

The Court cannot conclude that the mistake in relying solely on this information was excusable when Plaintiff’s counsel was expressly advised by the company not to rely solely on this information. Thus, the Court finds that discretionary relief is not warranted here, and Plaintiff Victoria Marie McGrath’s Motion to Set Aside Judgment is DENIED.