Judge: Mark A. Young, Case: 20SMCV01133, Date: 2024-05-03 Tentative Ruling

Case Number: 20SMCV01133    Hearing Date: May 3, 2024    Dept: M

CASE NAME:           Allorbi v. Counter Brands LLC, et al.

CASE NO.:                20SMCV01133

MOTION:                  Motion to Vacate Default/Default Judgment

HEARING DATE:   5/3/2024

Legal Standard

Relief under 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 Gloria Allorbi moves to vacate and set aside the dismissal. Plaintiff argues that mandatory relief is required due to attorney-fault. Counsel states that on April 10, 2023, the parties agreed upon the terms of a settlement and Plaintiff filed and served a Notice of Settlement. (Bryant Decl. ¶3, Ex. A). The Court set an OSC re: Settlement and Dismissal for May 31, 2023. (Bryant Decl. ¶4) Counsel explains that he was set to begin two separate federal jury trials in early June 2023, and requested that his office get coverage for the hearing given his unavailability. (Bryant Decl. ¶5) However, due to an administrative scheduling error, coverage counsel was not retained and there was no appearance made by Plaintiff at the May 31, 2023, hearing. (Bryant Decl. ¶ 5.) Following counsel’s non-appearance, the Court continued the hearing to July 10, 2023. Once again due to administrative error, the hearing was neither calendared nor was a remote appearance reserved. (Bryant Decl. ¶ 8, Ex. C.) Counsel failed to appear at the July 10, 2023, hearing, and the Court dismissed the action without prejudice. On that same day, counsel received a Notice of Dismissal for failure to appear at the hearing. (Bryant Decl. ¶7, Ex. B.) Following this, counsel apparently believed the matter was resolved. Counsel did not move to vacate the dismissal until January 8, 2024.

These facts Plaintiff’s claim for mandatory relief. Plaintiff moved for relief within six months of entry of dismissal. The record suggests that dismissal was a result of counsel’s mistake inadvertence, surprise, or neglect. However, there is no affidavit of fault on record. Counsel supplied the above facts via declaration but failed to sign his declaration as required. Thus, the Court cannot grant the motion on the current record.

The Court will consider granting the motion if counsel appears at the hearing having filed a signed declaration.  Otherwise, the motion is DENIED.