Judge: Mark A. Young, Case: 23SMCV01723, Date: 2024-08-09 Tentative Ruling

Case Number: 23SMCV01723    Hearing Date: August 9, 2024    Dept: M

CASE NAME:           Naylon v. Wilshire Borgata Owners Assoc.

CASE NO.:                23SMCV01723

MOTION:                  Motion to Vacate Entry of Dismissal

HEARING DATE:   8/9/2024

Legal Standard

A 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 Patrick R. Naylon moves 1) to vacate the dismissal of this action entered on January 4, 2024; 2) to restore this action to the Court’s active calendar; 3) to require Defendant to file its answer to the Complaint; 4) vacate sanctions order against Plaintiff; and 5) sanction Defendant and counsel of record for failure to serve the January 4, 2024, Minute Order.  Even though Plaintiff filed a notice of settlement, the Court will still address the issues raised in the motion.

As set forth below, the Court vacates the dismissal and sanctions order and places this action back on calendar due to mistake, inadvertence and surprise. Plaintiff explains that through August 2024 and February 2024, he was experiencing serious health problems which resulted in three surgeries, which interrupted his ability to prosecute this action. (Naylon Decl., ¶ 5.) He also explains that his business address is 3835 E. Thousand Oaks Blvd., Suite 277, Thousand Oaks CA 91362. (¶ 2.) The Clerk inadvertently omitted the suite number on the notice of the January 4, 2024, order to show cause. (¶ 3.) Plaintiff states that he never received a copy of the October 18, 2023, Minute Order or notice of the January 4, 2024, OSC. (¶ 4.) Plaintiff explains that he first learned that this action was dismissed in a February 2024 meeting with the defendant HOA. (Id.) Plaintiff also shows cause to vacate the $500.00 sanctions order, as his failure to appear was the result of a lack of notice.

Accordingly, the motion to vacate is GRANTED in part.

Plaintiff does not show any grounds to require Defendant to file its answer, to vacate sanctions order against Plaintiff; or sanction Defendant/counsel for failure to serve the January 4, 2024, order. Plaintiff has not submitted proof of service of summons on Defendant. On the face of the record, Defendant has not made a general appearance. The Court therefore has no jurisdiction to order Defendant to answer or sanction Defendant.   Furthermore, the parties have settled this matter.

The Court sets an OSC re Dismissal/Settlement for September 24, 2024, at 8:30 a.m.