Judge: Mark A. Young, Case: 19STCV37083, Date: 2025-05-20 Tentative Ruling

Case Number: 19STCV37083    Hearing Date: May 20, 2025    Dept: M

CASE NAME:           Croker, et al., v. Atwill, et al.

CASE NO.:                19STCV37083

MOTION:                  Motion to Set Aside/Vacate Dismissal

HEARING DATE:   6/28/2025

Legal Standard

Relief under California Code of Civil Procedure section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) 

Analysis

Plaintiff Ferello Croker and Claudia Gutierrez moves for relief from the Court’s June 28, 2024, dismissal.  Plaintiffs do not show grounds for mandatory relief. By its terms, Code of Civil Procedure section 473(b) only offers mandatory relief for defaults and resulting default judgments. Thus, mandatory relief is unavailable.

The Court declines discretionary relief. Plaintiffs have not shown excusable mistake, inadvertence, surprise, or neglect. A cursory review of the record demonstrates Plaintiff’s failure to prosecute this action. Ignoring that this case languished at its initial stages from October 2019 through June 2024, Plaintiffs do not show that they diligently sought relief from dismissal within a reasonable time. Counsel admits that they mis-calendared the June 28, 2024, hearing as July 28, 2024. (Berokim Decl., ¶11.) Counsel therefore should have been on-notice of the mistake as of July 28, 2024. Counsel does not explain why Plaintiffs did not move for relief at that time. Instead, Plaintiffs waited four months and nearly six months from the dismissal, to file this motion on December 9, 2024, without any further elaboration or explanation.

Accordingly, the motion is DENIED.