Judge: Michael E. Whitaker, Case: BC719693, Date: 2023-01-24 Tentative Ruling

Case Number: BC719693    Hearing Date: January 24, 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 Antonette Velasquez (Plaintiff) through counsel, Hesam Dean Yazdanpanah (Counsel), moves to set aside the Court’s order of June 8, 2022, in which the Court dismissed the Complaint against Defendant Manuel Bracamontes (Defendant), without prejudice.  Defendant opposes the motion.  

ANALYSIS

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.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “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 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.) 

            First, Plaintiff’s motion is timely.  The entry of dismissal was made on June 8, 2022.  Plaintiff then filed their application for relief on November 28, 2022, within six months of the entry of the dismissal.

            Second, Plaintiff seeks to set aside the dismissal entered on June 8, 2022, due to the fault of Plaintiff’s counsel.  Plaintiff’s application for relief is accompanied by the declaration of Plaintiff’s counsel, Hesam Dean Yazdanpanah (Counsel), stating that Counsel is not sure whether it was a mis-transcription or miscommunication that led his office’s failure to attend the OSC on June 8, 2022.  (Declaration of D. Hess Panah.)  However, Counsel concludes that it was error on Counsel’s part that led to the dismissal.  (Declaration of D. Hess Panah.)

            In opposition, Defendant argues that the many errors made by Plaintiff’s Counsel since the inception of this litigation are neither excusable, nor articulated sufficiently to justify relief.  Further, Defendant seeks monetary sanctions. 

            However, based on the timely request to vacate the dismissal supported by an attorney affidavit admitting to attorney fault, the Court finds Plaintiff’s application to set aside dismissal conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

Whenever relief is granted on an attorney’s affidavit of fault, the Court shall “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc., §¿473, subd. (b) see also Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 734 [“Whenever relief is granted based on an attorney's declaration or affidavit of fault, the trial court is required by section 473(b) to ‘direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties’ ”].)  Thus, the Court will direct D. Hess Panah of the Law Offices of D. Hess Panah, to pay reasonable compensatory legal fees and costs to Defendant in the amount of $780 which represents four hours of attorney time to draft the opposition and attend the hearing at $195 per hour. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside dismissal and orders the  dismissal entered on June 8, 2022 vacated.  

            Further, the Court orders D. Hess Panah of the Law Offices of D. Hess Panah to pay reasonable compensatory legal fees and costs in the amount of $780 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

            Further, the Court sets a Trial Setting Conference on February 28, 2023 at 8:30 A.M. in Department 32.  In advance of the conference, counsel for Plaintiff and Defendant shall meet and confer about a proposed trial date. 

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