Judge Matthew C. Braner, Case 37-2021-00002346-CU-PA-CTL 2024-02-16 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2021-00002346-CU-PA-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2021-00002346-CU-PA-CTL WHITE VS AGUIRRECARDENAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Brenda White and Gary White's motion to set aside dismissal is GRANTED.

The mandatory relief portion of Code of Civil Procedure section 473, subdivision (b), states: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

(Code Civ. Proc., § 473, subd. (b).) To obtain mandatory relief, the court must 'find that the default [or dismissal] was actually caused by the attorney's mistake, inadvertence, surprise or neglect.' (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991; see also Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 821 ['The only limitation is when the court finds the default was not in fact the attorney's fault, for example when the attorney is simply covering-up for the client.'].) 'Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.' (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033; see also Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399-400 [the 'attorney fault' language was added to section 473 in 1988 'to relieve the innocent client of the consequences of the attorney's fault; to place the burden on counsel; and to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.'], quoting Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1009.) Here, the court dismissed the entire action without prejudice on October 20, 2023 because no party appeared at the scheduled status conference. (ROA #52.) Attorney Lewis Khashan attests that he failed to appear at the October 20, 2023 status conference due solely to a calendaring error. He explains that his law firm uses CASEpeer for its practice management system, and his office discovered that the system was 'mis-calendaring and/or deleting dates/tasks/events' from the calendar. He attests that the issue was not corrected until after the October 20, 2023 status conference, and that he would not have missed the hearing absent the inadvertent calendaring error.

The evidence presented is sufficient to show the failure to appear was the result of inadvertence or mistake, and nothing in the record before the court suggests that attorney Khashan's clients in any way contributed to the dismissal. The motion for relief under section 473 was also filed well within the Calendar No.: Event ID: TENTATIVE RULINGS

3053827 9 CASE NUMBER: CASE TITLE: WHITE VS AGUIRRECARDENAS [IMAGED] 37-2021-00002346-CU-PA-CTL statutory six-month period. Accordingly, Plaintiffs' motion is granted.

The dismissal without prejudice entered on October 20, 2023 is set aside.

The minute order is the order of the court.

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3053827 9