Judge Lynne M. Hobbs, Case Number: 21STCV19261, Date: 2024-02-15 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV19261, Date: 2024-02-15 Tentative Ruling

Case Number: 21STCV19261 Hearing Date: March 14, 2024 Dept: 30

NATHALIE LESTER LIU vs TAMIKO WAKABAYASHI

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED.

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

The Court continued the hearing for further briefing, but no further briefs were filed.

Plaintiff argues that due to his Plaintiff’s counsel’s inadvertence, mistake, and neglect, the entire case was dismissed. Plaintiff states that an appearance attorney failed to appear after arrangements were made. Still, no responsive paperwork to the OSC was filed five days prior to the hearing, or at all, pursuant to CRC rule 3.110(i).

Nevertheless, Plaintiff cannot obtain relief under the mandatory provisions of Code of Civil Procedure section 473(b) where an action is dismissed for failure to prosecute. “Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].” (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.)

In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the Court stated:

"An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473."

Although “[t]he purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney’s error, impose a burden on the attorney instead, and avoid additional malpractice litigation” (Matera v. McLeod (2006) 145 Cal.App. 44, 63 [reversing trial court’s denial of 473, subdivision (b), motion for relief from default judgment that was entered as a terminating sanction]), courts have construed the mandatory relief provision of section 473, subdivision (b), not to apply to discretionary dismissals, as “section 473 in effect [would] nearly nullif[y] the discretionary dismissal statutes, as few dismissals entered thereunder would ever assuredly be final” (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1816.)

Here, the mandatory provision of section 473 is unavailable because the Court dismissed the action for Plaintiff’s failure to prosecute. On May 22, 2023, the action was dismissed without prejudice, pursuant to Code of Civil Procedure sections 583.410, 583.420(a)(1), and CRC Rule 3.110(b) & (f).

The Court finds the discretionary provision of section 473 is also unavailable because Plaintiff has failed to: (1) show the neglect at issue was “excusable,” and (2) make the motion within “a reasonable time.” A showing of diligence is required when seeking discretionary relief. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.)

Here, again, the Court dismissed the matter on May 22, 2023, however, the motion was filed on November 17, 2023, and counsel has not explained why he waited almost six months to file this motion. A delay is unreasonable as a matter of law when it exceeds three months and there is no evidence to explain the delay. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34.) Here, there is no explanation for the delay. Counsel only states he was in Europe when the case was dismissed, and he did not find out about the dismissal until well after he returned. No date has been provided as to when this was. No explanation has been provided as to why counsel did not receive notice of the dismissal, which was mailed to him on the same day the case was dismissed. (5/22/2023 Certificate of Mailing.) As such, the delay is unreasonable as a matter of law.

Next, excusable neglect exists where counsel or the party acted as a reasonably prudent person would under the circumstances. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Attorney negligence is not a basis for discretionary relief under Code of Civil Procedure Section 473. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672.) Being busy and experiencing stress in meeting deadlines in the practice of law alone is not excusable neglect. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 [counsel unsuccessfully argued the stresses of a busy practice, the hurry to meet deadlines and obligations of other pending litigation].)

Here, again the matter was dismissed because of the delay in prosecution. Counsel has not explained how it was excusable neglect not to make any effort to serve Defendant even after the Court cautioned that it may exercise its discretion to dismiss the case for failure to file proof of service within two years on November 4, 2022. While counsel explains that he was undergoing settlement discussions with the insurance carrier for Defendant, that does not excuse the failure to serve Defendant with the summons and complaint for over two years at the time of dismissal, and almost three years now. Thus, it appears no efforts were made to serve Defendant even though the Court cautioned counsel that it would dismiss the case. The Court cannot find that this was excusable neglect. The Court notes that counsel explains the reason for the failure to appear at the OSC hearing on May 22, 2023, but no adequate explanation has been provided for the failure to serve Defendant with the summons and complaint, i.e., the delay in prosecution, nor the filing of a responsive declaration as provided by CRC rule 3.110(i).

As a result, the court acted well within its discretion in dismissing this case for failure to prosecute. (See Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 762 [trial court has wide discretion to dismiss for failure to diligently prosecute and its decision will not be disturbed by an appellate court absent a manifest abuse of discretion.].)

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is DENIED.