Judge: Lynne M. Hobbs, Case: 21STCV06586, Date: 2024-01-29 Tentative Ruling

 PLEASE NOTE:    

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.  

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit. 

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.  

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email. 

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present. 

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.     

Case Number: 21STCV06586    Hearing Date: January 29, 2024    Dept: 30

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. The Court orders Poulter to pay $1,840 to defense counsel, and $1,000 to the State Bar Client Security Fund.  Trial is set for August 28, 2024, at 8:30 am, and Final Status Conference is set for August 14, 2024. Moving party to give notice.

Legal Standard

Code of Civil Procedure §473(b) provides for mandatory and discretionary relief from dismissal. “The 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 through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP §473(b). Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

As a preliminary matter, dismissals entered with prejudice are entitled to relief under Code of Civil Procedure Section 473(b) provided that Code of Civil Procedure Section 473(b) requirements are met. (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 725.) Further, mandatory relief under section 473(b) for “any ... dismissal entered” encompasses dismissals entered as a terminating sanction for discovery abuse. (Id.)

Here, the motion is timely filed. The action was dismissed on May 31, 2023. This Motion to Set Aside the Dismissal was filed on November 28, 2023, within six months of the dismissal.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.) “The mandatory relief provision acts as a ‘narrow exception to the discretionary relief provision for default judgments and dismissals. [Citation.]’ ” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, quoting Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Id. at 723.) “[T]he Court of Appeal has stated the purpose was 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.” (Id. at 723.)

Plaintiff moves for relief on the ground that dismissal was entered due to the neglect of Plaintiff’s counsel. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting to the following. On September 12, 2022, Plaintiff’s former counsel (Last, Faoro & Whitehorn) filed a Motion to Be Relieved as Counsel. The hearing was set for October 20, 2022. In the form, Last, Faoro & Whitehorn used an address for Plaintiff that he did not use or check regularly at that time: “9701 Wilshire Blvd., 10th Floor, Beverly Hills, California 90212.” (See Eder Decl., ¶¶ 2, 4- 9.) This is a shared office space with multiple businesses and a front desk, which Plaintiff did not use at that time. (Id.) This is the address that Defendant’s attorney would use to “meet and confer” with Plaintiff on the Motions prior to filing the Motions and Motion for Terminating Sanctions. (Poulter Decl., ¶ 4; Exhs. 1-2.)

On October 28, 2022, Plaintiff hired Attorney Poulter to prosecute his case. (Poulter Decl., ¶ 8; Exh. 4.) Attorney Poulter failed to file a Notice of Association of Counsel due to his own negligence. (See Poulter Decl., ¶ 8.)

Attorney Poulter is informed and believes that the reason why the Notice of Association was never filed, as well as the reason why the discovery was never responded to, is because Attorney Poulter was engaged in pre-trial preparation for the case of Moas Khanian v. All Action Security Consulting Group, Inc., et al. (Los Angeles Superior Court Case No. 20STCV4447), the Honorable Michael B. Harwin presiding. (Id.) The Khanian trial began on November 29, 2022. Attorney Poulter was lead trial counsel for Plaintiff Moas Khanian. (Id.) The Khanian matter resulted in a $2,195,216.30 jury verdict for the plaintiff on December 13, 2022. (Poulter Decl., ¶ 8; Exh. 5.) Due to the complexity of the case, the pre-trial preparation and multiple week trial consumed Attorney Poulter’s calendar, resulting in Attorney Poulter neglecting Plaintiff’s case. (See Poulter Decl., ¶ 8.) Thus, Attorney Poulter completely forgot about the Eder v. Chrichi matter, the fact that a Notice of Association needed to be filed but had not been filed, as well as the fact that discovery in the Eder v. Chrichi matter was outstanding and due on November 18, 2022. (Id.)

Because a Notice of Association was never filed, Attorney Poulter did not receive any communications from defense counsel regarding the case, the outstanding discovery, the Motions to Compel (FROGS & RFPs), or the Motion for Terminating Sanctions. And because Plaintiff’s former counsel (Last, Faoro & Whitehorn) did not confirm with Plaintiff that his old business address (9701 Wilshire Blvd., 10th Floor, Beverly Hills, California 90212) was not where he would prefer mail to go, Plaintiff did not receive any communications or notice of the Motions either. (Eder Decl., ¶¶ 2-19.)

Plaintiff reasonably assumed that Attorney Poulter was handling his case, which is why he hired him in the first place. (Poulter Decl., ¶ 21; see also Eder Decl., ¶ 11.)

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect, the dismissal must be set aside.

Fees and Sanctions

CCP section 473(c)(1) states: Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

“The court may properly order payment of costs or attorney fees to the adverse party as compensation for loss or expense occasioned by the granting of the section 473 motion.” (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1474 (Jade K.).)

The court has discretion to impose a penalty of no greater than one thousand dollars ($ 1,000) upon an offending attorney or party upon such terms as may be just, which is construed as “costs and attorney’s fees for any losses suffered” because of the Section 473(b) motion. Code Civ. Proc., § 473(c). (Hearst v. Ferrante (1987) 189 Cal. App. 3d 201, 204.)

Attorney Poulter proposes that the Court award sanctions in the amount of $2,840. (See Poulter Decl., ¶ 24.) That sum is calculated as follows: $920 ($460 x 2 [Defendant’s original request associated with Defendant’s Motions to Compel]) + $460 (work associated with Defendant’s Motion for Terminating Sanctions) + $460 (work associated with opposing Plaintiff’s Motion to Set Aside Dismissal) + $1,000 (payable to the State Bar of California’s Client Security Fund) = $2,840. (Id.)

As such, the Court orders Poulter to pay sanctions as proposed. (See CCP section 473(c)(1)(C).