Judge: Michael E. Whitaker, Case: 20STCV32436, Date: 2022-10-03 Tentative Ruling

Case Number: 20STCV32436    Hearing Date: October 3, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING 

MOTION 

  Plaintiff Michael Pak (“Plaintiff”), through his counsel of record, Steven J. Barkin (“Counsel”), moves to vacate the Court’s order of February 22, 2022, in which the Court dismissed Plaintiff’s entire action without prejudice.  Defendant El Dorado Enterprises, Inc. (“Defendant”) filed an opposition to the motion and Plaintiff has replied to the opposition.    

ANALYSIS 

            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.)  “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.”  (Id. at p. 24 [cleaned up].)[1] 

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.4^th 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.) 

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) [mandatory provision – attorney fault].) 

            “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.)  “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.) 

Here, Plaintiff filed the motion to vacate the order of dismissal on March 3, 2022. Plaintiff advances the declarations of Counsels Steven J. Barkin and Andrew Chin.  Counsel Barkin avers that he was substituted into the case 5 or 6 days prior to the scheduled Non-Jury Trial, and he failed to appear at the trial on February 22, 2022 due to a failure to insert the matter into his calendar. (Barkin Decl. ¶¶ 2-6.) Counsel Chin avers that he forgot to take action to serve the Defendant with the summons and complaint. (Chin Decl. ¶¶ 3, 4.)

Defendant opposes the motion on the grounds that the mandatory provision of Section 473 does not apply to a failure by Plaintiff to timely serve the complaint or prosecute the action.  However, the cases that Defendant relies upon are distinguishable. (See Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483-484 (hereafter, Gotschall) [case dismissed when the plaintiff failed to meet his burden on an essential element of the cause of action)] Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1080 [case dismissed based on Code of Civil Procedure section 585.420 when the plaintiff failed to serve the complaint within three years]; Peltier v. McCloud River R.R. Co. (1995), 34 Cal.App.4th 1809, 1817 [case dismissed based on Code of Civil Procedure section 585.420 when the plaintiff failed to bring the case to trial within three years].)   Additionally, Defendant’s reliance on Gotschall is misplaced because the dismissal in that case occurred when the plaintiff failed to meet his burden on an essential element of the cause of action. Gotschall emphasized that the “lack of success in contesting a motion does not equate to plaintiff losing his day in court.” (Gotschall, supra, 96 Cal.App.4th at p. 484.)  The appellate court additionally stated that “[a] dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion, and relief afforded where that failure to appear is the fault of counsel. The relief afforded to a dismissed plaintiff … is therefore comparable to the relief afforded a defaulting defendant.” (Id. at p. 483.)

Furthermore, although the Court has the discretionary authority under Section 583.420 to dismiss an action if: (1) service is not made within two years or (2) the action is not brought to trial within three years, Plaintiff’s action was not dismissed under Section 583.420.  Instead, Plaintiff’s action was dismissed based on Plaintiff’s failure to appear for trial.  (See Code Civ. Proc., § 581, subd. (b)(3) [“An action may be dismissed . . . By the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial”].)  In turn, Counsel Barkin and Counsel Chin have adequately demonstrated that Plaintiff’s failure to appear at the February 22, 2022 Non-Jury Trial was the result of their mistakes, inadvertence, and neglect.

            Lastly, the Court notes that Defendant has made a general appearance in the action by filing an opposition to the motion which undermines its argument that Plaintiff is not entitled to relief because the complaint has not been served in a timely manner.  

            “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.  After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant.”  (Code Civ. Proc., § 1014.)  “Thus a general appearance need not be a formal, technical step or act; rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person.  What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.”  (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397 [cleaned up].)  Moreover, “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.  . . .  A general appearance can make up for a complete failure to serve a summons.”  (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145 [cleaned up]; see also Code Civ. Proc., § 410.50, subd. (a) [“A general appearance by a party is equivalent to personal service of summons on such party”].) 

CONCLUSION AND ORDER 

Therefore, the Court grants Plaintiff’s motion to vacate the order of dismissal under Code of Civil Procedure section 473 and sets aside the February 22, 2022 order dismissing Plaintiff’s entire action. 

Further, the Court sets a Trial Setting Conference on December 9, 2022 at 8:30 AM in Department 32. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.