Judge: Mark A. Young, Case: 24SMCO00044, Date: 2025-04-01 Tentative Ruling

Case Number: 24SMCO00044    Hearing Date: April 1, 2025    Dept: M

CASE NAME:           Meyer, Olson,
Lowy & Meyers LLP v. Muhlhauser

CASE NO.:                24SMCO00044

MOTION:                  Motion
to Set Aside/Vacate Default

HEARING DATE:   4/1/2025

Legal
Standard

Relief under section 473(b) is either discretionary
or mandatory. 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

Respondent Stefanie Muhlhauser
moves to set aside the court’s order granting Plaintiff’s petition to compel
binding arbitration. Respondent does not show good cause for discretionary
relief under section 473(b). Respondent contends that she was sick and unable
to attend the hearing on June 12, 2024. However, she admits that she did not
file a written opposition or inform the court of her inability to attend. Further,
she admits to having sufficient notice of the hearing, since she emailed Petitioner’s
counsel to inform him of her inability to attend two days prior to the hearing.
In fact, counsel helpfully informed Respondent that she could access the
hearing remotely. Respondent says that she tried to sign on the website but did
not know how to gain virtual access to Dept. M, and tried to call but “no one
answered.” (Muhlhauser Decl., ¶ 6.) From the record, the Court concludes that Respondent
did not make reasonable efforts to inform the Court of her need for a
continuance of the petition hearing. The Court cannot construe Respondent’s apparent
inactions here as a reasonable “mistake,
inadvertence, surprise, or excusable neglect”. Further, Respondent unreasonably
delayed in seeking relief. Despite knowing of the June 12, 2024, order soon
thereafter, Respondents waited almost six months to make the instant
motion on December 5, 2024. While just barely within the jurisdictional
maximum, Respondent’s delay was unreasonable and precludes relief under these
circumstances.

Accordingly, the motion is DENIED.