Judge: Mark A. Young, Case: 23SMCV02690, Date: 2024-10-02 Tentative Ruling

Case Number: 23SMCV02690    Hearing Date: October 2, 2024    Dept: M

CASE NAME:           Stanley, v. Consolidated Disposal Service LLC, et al.

CASE NO.:                23SMCV02690

MOTION:                  Motion to Vacate Dismissal

HEARING DATE:   10/2/2024

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 Mark Stanley moves to vacate the order of dismissal issued by the Court on May 2, 2024.  On May 2, 2024, Plaintiff failed to appear at an Order to Show Cause Re: Dismissal for Plaintiff counsel’s failure to appear. Plaintiff filed this motion for relief on July 8, 2024, approximately two months after notice of the order was given by Defendant.

Plaintiff demonstrates that the dismissal resulted from his counsels’ negligence. Plaintiff presents his counsels’ sworn affidavits, which provides a straightforward admission of neglect. (See Makasian Decl.; Wagner Decl.) Counsel explains counsels’ staff had scheduled that the CMC hearing for December 8, 2023, but inadvertently failed to secure an appearance attorney. (Wagner Decl., ¶¶ 4-5.) On February 22, 2024, counsels’ staff filed a Case Management Statement and declaration concerning the non-appearance, but Mr. Wagner failed to see the hearing on calendar and therefore failed to appear. (¶ 7.) Counsels’ paralegal received emailed notice of the hearing, but did not see the email. (¶ 8.; Siavii Decl., ¶¶ 3-7.) At the time of the hearing, Mr. Makasian of the Wagner Firm was counsel of record for Plaintiff. He declares that he was not advised of the OSC because it was inadvertently on Mr. Wagner’s calendar. (Makasian Decl., ¶¶ 3-8.) Thus, Plaintiff explains that, though his counsels’ negligence and errors, he failed to appear for the OSC. As such, Plaintiff shows entitlement to mandatory relief. The Court therefore lacks discretion to deny the motion.

Accordingly, the motion is GRANTED.  Since 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).) Defendant opposes but does not provide for its reasonable fees and costs resulting from counsels’ failures to appear.  Therefore, nothing shall be awarded.