Judge: Michael E. Whitaker, Case: BC702236, Date: 2023-03-07 Tentative Ruling

Case Number: BC702236    Hearing Date: March 7, 2023    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 Cesar Mancilla Lobos (Plaintiff) moves to set aside the Court’s June 28, 2022 order.  Defendants Low Price Autobody Shop, Inc., dba Low Price Autobody and Vardan Vardumyan (collectively, Defendants) oppose the motion.

            Preliminarily, Plaintiff indicates in his motion that he seeks an “order to set aside the judgment ordered and entered by the Court in the above-entitled action on June 28, 2022.”  (Plaintiff’s Motion, p. 1.)  However, the Court notes that though the Court granted Defendants’ Motion for Summary Judgment on March 29, 2022, a judgment was never entered.  The order made by the Court on June 28, 2022, was rather a dismissal of Plaintiff’s Complaint, without prejudice, based on the parties failure to appear at the Order to Show Cause re dismissal to enter judgment (hereafter OSC) set on June 28, 2022.  (See Minute Order June 28, 2022; Order of Dismissal filed June 28, 2022.) 

            The June 28, 2022 order of dismissal is separate from the March 29, 2022 order granting Motion for Summary Judgment.  As such, both Plaintiff and Defendants’ arguments in the moving and opposition papers regarding the March 29, 2022 order are inapplicable to the analysis of whether the Court can grant Plaintiff relief from the Court’s June 28, 2022 dismissal of Plaintiff’s Complaint.

            Therefore, the Court shall disregard Plaintiff and Defendants’ discussion of the March 29, 2022 order granting Motion for Summary Judgment and focus its analysis on whether Plaintiff qualifies for Code of Civil procedure section 473 relief from the Court’s June 28, 2022 entry of dismissal of Plaintiff’s Complaint.

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 (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].)

1.     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).)  “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616, emphasis added; Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 484 [“Generally, the applicability of the mandatory provision is limited to those dismissals procedurally equivalent to defaults”].) 

Accordingly, the Court finds that the mandatory relief provision cannot be applied to the June 28, 2022 order of dismissal due to Plaintiff and Defendants failing to appear at the OSC.  Said order is not akin to a default vis-à-vis Plaintiff.   

2.     Discretionary Relief

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.)

The June 28, 2022, order may however qualify for discretionary relief.  First, Plaintiff filed the instant motion on December 28, 2022, and thus has sought relief within the mandatory six-month period. 

Second, Plaintiff argues that the June 28, 2022, dismissal was due to Counsel’s mistake, inadvertence, surprise or neglect.  Plaintiff relies on the declaration of his Counsel, Fred Hanassab (Counsel).  Counsel avers that he has faced many obstacles, both in his personal life and his law practice which caused his failure to appear at the June 28, 2022 hearing.  (Declaration of Fred Hanassab, ¶ 8.)  Counsel further explains that his office has suffered staff shortages due to the Covid-19 Pandemic.  (Declaration of Fred Hanassab, ¶ 9.)  Counsel has been out of office for great periods of time due to illnesses either he or his family members have sustained.  (Ibid.)  Counsel describes unexpected turnover of staff in his office.   (Ibid.)  Counsel concludes that these aforementioned circumstances contributed to his mistake, inadvertence, surprise or neglect to appear at the June 28, 2022 hearing.  (See Declaration of Fred Hanassab, ¶ 8.)

The Court finds that in light of the strong public policy interest of disposition of a case on the merits, the circumstances weigh in favor of granting relief.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion for relief from the Court’s order on June 28, 2022 and vacates the Order of Dismissal entered on June 28, 2022. 

            Further, the Court sets Order to Show Cause re dismissal to enter judgment on April 11, 2023 at 8:30 A.M. in Department 32. 

            The Clerk of the Court shall provide notice of the Court’s orders.