Judge: Mark A. Young, Case: 21SMCV00475, Date: 2024-07-05 Tentative Ruling

Case Number: 21SMCV00475    Hearing Date: July 5, 2024    Dept: M

CASE NAME:           Rapaport, v. Boris Cosmetic Surgery Center, et al.

CASE NO.:                21SMCV00475

MOTION:                  Motion to Set Aside Dismissal

HEARING DATE:   7/5/2024

Legal Standard

Relief under 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 Eugene Rapaport M.D. moves for: (1) an order setting aside the Court’s order on January 8, 2024 to advance the hearing date of Plaintiff’s Motion to Enforce Settlement Agreement (“Motion”) to January 8, 2024, and vacate the motion; (2) an order setting aside the dismissal of the action; and (3) for an order setting a hearing for an updated version of the motion to be heard on the nearest available date and time.

Plaintiff provides the relevant procedural timeline leading up to dismissal and the motion to enforce settlement. Plaintiff and Defendants settled this action and entered into a signed, written settlement agreement on April 14, 2023. The settlement required Defendants to make two payments. The first payment was due on June 28, 2023. On June 29, 2023, Plaintiff counsel informed Defendants’ counsel that the first payment was due. (Kalter Decl., ¶5.) On June 30, 2023, Defendants made the first payment. (¶ 7.) The second settlement payment was due 60 days later, on September 30, 2023. (¶ 8.) On October 23, 2023, Plaintiff filed a Motion to Enforce the Settlement Agreement pursuant to paragraph 6 of the agreement because Defendant failed to make the second payment. (¶ 9.) On November 30, 2023, Defendants appeared at an OSC, and informed the Court that they would make the outstanding payment as soon as possible. Payment was made later that day. (¶ 10.) Due to a calendaring error, Plaintiff’s counsel failed to attend the Order to Show Cause hearing on January 8, 2024. (¶ 4.) Defendants confirmed that the second settlement payment had been made to Plaintiff on November 30, 2023. Accordingly, the Court dismissed the action and vacated Plaintiff’s Motion to Enforce the Settlement.

Plaintiff does not show entitlement to mandatory relief. Mandatory relief only pertains to “resulting default entered by the clerk… which will result in entry of a default judgment,” or a “resulting default judgment or dismissal entered against his or her client[.]” (CCP §473(b).) Strictly speaking, mandatory relief is available for a dismissal against a client. However, even if mandatory relief is appropriate for the dismissal itself, Plaintiff seeks more than simply setting aside the dismissal. Plaintiff seeks to vacate the Court’s order advancing and vacating the enforcement motion, and for the court to re-set the motion. Such an order is neither a “resulting default entered by the clerk… which will result in entry of a default judgment,” nor a “resulting default judgment or dismissal entered against his or her client[.]” Therefore, the mandatory provisions of section 473(b) would not apply to the relief requested.

Furthermore, the Court is not inclined to grant discretionary relief. Plaintiff seeks to vacate the dismissal and reinstate a mooted motion to enforce so that the Court may award his attorneys’ fees for having to make such a motion. Plaintiff claims mistake, inadvertence, surprise, or excusable neglect because counsel, due to a calendaring error, failed to attend the Order to Show Cause Re: Dismissal (Settlement) hearing on January 8, 2024. (Kalter Decl., ¶ 4.) Plaintiff insists that, even though the motion is moot, he should still be entitled to a fee award for having to bring the motion. Specifically, Plaintiff requested $4,200.00 in reasonable attorneys’ fees and expenses in enforcing the Settlement Agreement. (See Plaintiff’s 664.6 Motion, Kalter Decl., ¶ 9.)

While Plaintiff may have been entitled to fees if the motion was successful, the Court does not find sufficient cause to vacate the dismissal under the present circumstances. Defendant notes that Plaintiff’s underlying motion could have been avoided entirely if Plaintiff had reached out about the non-payment. (See Lorch Decl., ¶¶ 3-9.) The parties had encountered this issue before, and resolved it informally. Plaintiff presents no reason why he should not have at least attempted to informally resolve the issue before bringing the motion.

Moreover, even if the Court grants discretionary relief, the Court would require Plaintiff’s counsel to pay sanctions for failing to appear and necessitating this motion, which would severely undercut the purpose of granting relief in the first place. (CCP § 473(c)(1).)

Accordingly, the motion is DENIED.