Judge: Mark A. Young, Case: 22SMCV02794, Date: 2024-11-15 Tentative Ruling
Case Number: 22SMCV02794 Hearing Date: November 15, 2024 Dept: M
CASE NO.: 22SMCV02794
MOTION: Motion
to Set Aside/Vacate Dismissal
HEARING DATE: 10/25/2024
Legal
Standard
Relief under Code of Civil Procedure (CCP) 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).)
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 Navid Bahrami moves to
set aside dismissal based on the mandatory relief provisions of CCP section 473(b).
On October 12, 2023, the parties
failed to appear for a Case Management Conference. The court issued an OSC re:
dismissal and an OSC re: imposition of sanctions against plaintiff’s counsel
for failure to appear or prosecute. Ahead of the hearing, Counsel submitted a
declaration, explaining his cancer diagnosis, that it metastasized, and as a
result he underwent weekly infusions of immunotherapy, the first three of which
required overnight hospitalization. (Waddington Decl.) On January 18, 2024, the
Court held the OSC hearings. As a result of the Waddington declaration, the
Court dismissed the OSC re: sanctions and continued the OSC re: dismissal to
March 13, 2024. On March 13, 2024, the court held the OSC re: dismissal, but
there was no appearances for either party. Accordingly, the court dismissed the
operative First Amended Complaint.
Plaintiff demonstrates entitlement
to mandatory relief under section 473(b). Plaintiff filed this motion on June
20, 2024, within six months of the March 13, 2024, dismissal. Counsel provides
an affidavit of fault. Counsel claims that this case was dismissed as a result
of his mistake inadvertence, surprise and neglect. Counsel explains that on
March 5, 2024, he had CT and MRI scans. (Waddington Decl., ¶ 6.) On March 8,
2024, counsel’s oncologist informed him that the MRI and CT scans showed that a
3 mm legion left unabated during the December operation had grown to 8 mm, and
the cancer was intensifying in the liver and spreading to the lungs. (Id., ¶
7.) On March 12, 2024, Counsel obtained a second opinion that agreed that he should
immediately begin receiving immunotherapy infusions. (Id. ¶ 8.) Counsel had a
follow up appointment with the oncologist on March 15, 2024, and received
infusions of immunotherapy and overnight observation on March 22, March 29, and
April 5, 2024. (¶¶ 10-13.) Counsel takes responsibility for failing to attend
the OSC, stating that the dismissal was the result of his mistake,
inadvertence, surprise, and neglect. (¶¶ 16-17.)
Defendants claim fees of $2,650.00
(Lewiston Decl., ¶ 17) and of $4,387.50 (Comer Decl., ¶ 3) for the oppositions
to this motion. The Court finds these amounts to be unreasonable in light of
the arguments posited and the mandatory basis of the motion. Simply put,
Defendants’ opposition to this motion was not entirely reasonable. Moreover,
under the circumstances regarding counsel’s health, only nominal sanctions
would be warranted. Therefore, the Court imposes sanctions against Plaintiff’s counsel
of record, Mr. Waddington, in the reduced amount of: 1) $100.00 in favor of Defendant
Farshid Yassian, and 2) $100.00 in favor of Defendant Dr. Daryoushi Jadali.
Accordingly, the motion is GRANTED.