Judge: Michael E. Whitaker, Case: 19SMCV02157, Date: 2023-09-13 Tentative Ruling
Case Number: 19SMCV02157 Hearing Date: September 13, 2023 Dept: 207
TENTATIVE RULING
DEPARTMENT 207
HEARING DATE September 13, 2023
CASE NUMBER 19SMCV02157
MOTION Motion
to Set Aside/Vacate Dismissal
MOVING PARTY Plaintiff Shawn Dreamer
OPPOSING PARTIES Defendants Ray Consulting Group
Ventures, Inc.; Rayco Electronic Manufacturing, Inc. [erroneously sued as Rayco
Electronics Manufacturing, Inc.]; Suraj Development Corp.; Usha Patel; Mayan
Patel; Brenda Jaime; and Stephanie Preciado
BACKGROUND
Plaintiff Shawn Dreamer (“Plaintiff”) brought suit on December 16,
2019, against the various owners and managers of the dwelling he leased: defendants Ray Consulting Group Ventures, Inc
(“Defendant Ray”); Rayco Electronic Manufacturing, Inc. [erroneously sued as
Rayco Electronics Manufacturing, Inc.]; Suraj Development Corp.; Usha Patel;
Mayan Patel; Brenda Jaime; and Stephanie Preciado (collectively,
“Defendants.”) On January 9, 2023,
Defendant Ray filed a cross-complaint against Plaintiff.
On July 7, 2023, the Court
held a status conference, which neither Plaintiff nor counsel for Plaintiff
attended. As a result, the Court issued
an Order to Show Cause Re: Why Sanctions Should Not Be Issued Against Plaintiff’s
Counsel for Failure to Appear on July 7, 2023 and an Order to Show Cause Re:
Why the Case Should Not be Dismissed for Failure to Prosecute. The Court set the hearings regarding the Orders
to Show Cause on August 9, 2023. (July
7, 2023 Minute Order.)
At the August 9, 2023 hearings, again, neither Plaintiff nor counsel
for Plaintiff appeared. As a result, the
Court dismissed Plaintiff’s complaint and Ray’s cross-complaint against
Plaintiff without prejudice. (August 9,
2023 Minute Order.)
Plaintiff now moves to vacate and set aside the dismissal on the basis
that the failure to appear the status conferences was due to attorney mistake,
inadvertence, surprise, or excusable neglect stemming from “a mishap during the
course of transferring the case file from previous counsel to new
counsel.” (Motion at 1:1-4.) Defendants have opposed the motion.
LEGAL
STANDARD – SECTION 473 RELIEF
Code of Civil procedure section 473
“includes a discretionary provision, which applies permissively, and a
mandatory provision, which applies as of right.” (Minick v. City of Petaluma
(2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be
“applied liberally” in favor of relief if the opposing party will not suffer
prejudice. Because the law strongly
favors trial and disposition on the merits, any doubts in applying section 473
must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the
policy favoring trial on the merits prevails.”
(Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)
The party or the legal
representative must seek such relief “within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than
six months had elapsed from the entry of default, and hence relief under
section 473 was unavailable”]; People v.
The North River Ins. Co. (2011) 200 Ca.App.4th 712, 721 [motion
for relief under section 473 must be brought “within a reasonable time, in no
case exceeding six months”]). “The
six-month limit is mandatory; a court has no authority to grant relief under
section 473, subdivision (b), unless an application is made within the
six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340,
citations omitted.)
1. DISCRETIONARY RELIEF
Per Code of Civil Procedure
section 473, subdivision (b), a court may “relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.”
2. MANDATORY RELIEF
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).) “In considering whether the trial court
properly denied relief under section 473(b), the first question is the
sufficiency of defendants' showing of attorney fault, if believed, to trigger
the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond
Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other
grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to
relief from a default and resulting judgment whenever, on timely application
for relief, his attorney ‘attest[s] to his or her mistake, inadvertence,
surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)
In Standard, counsel for the
defendants attested that he believed the service of the summons on defendants
was defective and informed defendants that they were not required to answer the
summons under the laws of the United States.
Defense counsel also did not advise the defendants to take any
affirmative action, for example move to quash the service of the summons. Defense counsel also indicated that he
expected to “receive notice of any application for entry of default before
default was entered so that we could respond.” “He also acknowledged that he was responsible
for advising defendants in connection with, and preparing, the first motion for
relief from the default; that in doing so he “believed that the Court would set
aside any default because of an invalid service of process”; and that he
omitted “any argument showing that there was a ‘mistake, inadvertence,
surprise, or excusable neglect’ in WEC and Winbond Israel's motions.” Although
he did not separately point it out, he also indisputably omitted from
defendants' first motion any invocation of the mandatory relief provisions of
section 473(b), and the required showing to support such an invocation.” (Standard, supra, 179 Cal.App.4th at
p. 897.)
After considering the record before
the trial court, the appellate court held that “Counsel's mistakes, in
contrast, entitled them to relief . . . .
[defense counsel's] affidavit and the record as a whole overwhelmingly
established that the default and ensuing judgment were the products of attorney
fault.” (Standard, supra, 179
Cal.App.4th at p. 900.)
Further, “[t]he court's
determination of whether the default was caused by the attorney's mistake,
inadvertence, surprise, or neglect is in part a credibility determination. Credibility is an issue for the fact finder,
we do not reweigh evidence or reassess the credibility of witnesses.. When the
evidence gives rise to conflicting reasonable inferences, one of which supports
the findings of the trial court, the trial court's finding is conclusive on
appeal.” (Cowan v. Krayzman
(2011) 196 Cal.App.4th 907, 915 [cleaned up].)
ANALYSIS
Although Defendants have
characterized the attorney declarations of Lennon Slatter (Plaintiff’s former
counsel) and Mathew Russell (Plaintiff’s current counsel) submitted in support
of Plaintiff’s motion as “riddled with inaccuracies,” (Opp. at 1:3-8), the
parties do agree on the basic timeline of events as follows:
·
April 27, 2023 – Plaintiff retains Lennon Slatter
as counsel (Slater Decl. ¶ 2.)
·
May 15, 2023 – Mr. Slatter introduces himself as
Plaintiff’s new counsel to Sandra Block, counsel for Defendants (Block Decl. ¶ 6.)
·
May 22, 2023 – Mr. Slatter appears at the status
conference and requests additional time to fully review the large case
file. Plaintiff’s deposition is
rescheduled for June 21, 2023 to allow Mr. Slatter additional time to get up to
speed on the case file, and the status conference is continued to July 7,
2023. (Slatter Decl. ¶ 5; Block Decl. ¶
8.)
·
May 30, 2023 – Mr. Slatter files a substitution
of attorney.
·
June 12, 2023 – Mr. Slatter left a message for
Ms. Block, rescheduling Plaintiff’s deposition due to Mr. Slatter undergoing
dental surgery. (Slatter Decl. ¶ 6;
Block Decl. ¶ 9.)
·
July 3, 2023 – Mr. Slatter contacts Ms. Block,
informing her that he will not be able to attend the July 7 status conference,
and asks if she will submit a statement informing the Court of the new
deposition date so the status conference will be taken off calendar. (Slatter Decl. ¶ 7 and Ex. 1.1; Block Decl. ¶
10.)
·
July 5, 2023 – Mr. Slatter and Ms. Block have a
phone call where Mr. Slatter informs Ms. Block that new counsel will be
substituting in the case for Mr. Slatter, and Ms. Block indicated she or
someone from her office would inform the Court of Mr. Slatter’s absence, the
new deposition date, and inform the court that new counsel for Plaintiff would
be taking over. (Slatter Decl. ¶¶ 8-9
and Ex. 1.2; Block Decl. ¶ 10 and Ex. D.)
·
July 7, 2023 – neither Plaintiff nor Plaintiff’s
counsel appear at the status conference and the Court issues, in part, an Order
to Show re: Dismissal for Failure to Prosecute.
·
August 9, 2023 – neither Plaintiff nor
Plaintiff’s counsel appear at the Order to Show re: Dismissal for Failure to
Prosecute hearing, and the Court dismisses Plaintiff’s complaint and Ray’s
cross-complaint against Plaintiff.
·
August 10, 2023 – Plaintiff’s new counsel files
a substitution of attorney form. (Russell Decl. ¶¶ 18-19.)
Defendants argue that the attorney declarations do “not actually
attest to any mistake inadvertence, or neglect” but instead “blame the
dismissal on opposing counsel.” (Opp. at
6:8-10.) However, the Block declaration
acknowledges, “Despite being well aware that no substitution of attorney had
been filed, Mr. Slatter failed to appear [at the August 9, 2023 status
conference].” (Block Decl. ¶ 18.)
Thus, the Court finds that the declarations of Mr. Slatter and Mr.
Russell establish that the failure to appear was due to counsel’s mistake,
inadvertence, and excusable neglect. In
particular, the Court finds that Plaintiff’s counsel’s failure to appear at the
August 9 hearing was result of an apparent miscommunication between Mr. Slatter
and Mr. Russell about the timing of Mr. Russell substituting into the action,
which did not occur until August 10, and as such, which attorney/law firm would
appear on August 9 based upon Mr. Slatter’s understanding that as of July 2,
2023 Plaintiff had retained new counsel, BD&J.
Although better management of the action, and communication among Mr.
Slatter and Mr. Russell (and their respective law firms) would have forestalled
the dismissal of Plaintiff’s complaint, the Court finds that such missteps on
the part of Plaintiff’s counsel should not deprive Plaintiff of a trial on the
merits, especially when Defendants fail to establish prejudice in the Court
granting Plaintiff’s request for relief.
Defendants’ Request for Attorney Fees and Costs
Code of Civil Procedure section 473, subdivision (b) provides: “The
court shall, whenever relief is granted based on an attorney's affidavit of
fault, direct the attorney to pay reasonable compensatory legal fees and costs
to opposing counsel or parties.”
Defendants seek $1,230 in fees and Court costs associated with
opposing Plaintiff’s Motion to Vacate/Set Aside the Dismissal and attending the
hearing, representing 5 hours of attorney time to prepare the Opposition and 1
hour of attorney time to attend the hearing at a rate of $205 per hour, plus
$35 for the filing fee. (Glantz Decl. ¶
4.)
The Court finds three and one half (3.5) hours to be a reasonable time
to spend drafting the opposition, and one hour to be reasonable to attend the
hearing. Therefore, the Court grants
Defendant’s reasonable attorneys’ fees and costs in the amount of $957.50,
representing a total of 4.5 hours of attorney time at $205 per hour plus the
$35 filing fee.
Conclusion
Based upon the record, the
Court finds that Plaintiff has set forth a factual basis for relief under Code
of Civil Procedure section 473 due to attorney mistake, inadvertence, and
neglect. Accordingly, the Court grants Plaintiff’s motion to set aside the dismissal
of the complaint and orders the dismissal of Plaintiff’s complaint and of
Defendant Ray Consulting Group Ventures, Inc.’s cross-complaint against
Plaintiff, entered on August 9, 2023, vacated.
The Court further orders counsel for Plaintiff
(former and current), Slatter Law Firm, APC and BD&J, PC, jointly and
severally, to pay, through counsel for Defendants, Defendants’ reasonable
attorneys’ fees and costs in the amount of $957.50 on or before October 4,
2023.
In addition, the Court sets a Further Case
Management Conference on October 16, 2023 at 8:30 A.M. All parties and counsel shall comply with
California Rules of Court, rules 3.722, et seq. regarding the Further Case
Management Conference. In particular,
all parties shall adhere to the Duty to Meet and Confer (Rule 3.724) and to the
requirement to prepare and file Case Management Statements (Rule 3.725).
Plaintiff
shall provide notice of the Court’s ruling and file a proof of service
regarding the same.
DATED:
September 13, 2023 ___________________________
Michael E. Whitaker
Judge
of the Superior Court