Judge: Michael P. Linfield, Case: 22STCV17968, Date: 2023-04-27 Tentative Ruling

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Case Number: 22STCV17968    Hearing Date: December 11, 2023    Dept: 34

SUBJECT:        Motion for Relief Pursuant to CCP Section 473(b)

Moving Party: Plaintiff Fernando Carmona

Resp. Party:    None

The Motion for Relief Pursuant to CCP Section 473(b) is DENIED.

PRELIMINARY COMMENTS:

        In this case, Plaintiff’s counsel filed a motion under CCP §473(b) to vacate a dismissal so that Plaintiff’s counsel can file an attorney's fees motion in a Lemon Law case.  In Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, the Court of Appeal upheld this Court’s denial of a motion to vacate a dismissal under CCP §473(b); in that case Plaintiff’s counsel also moved to vacate dismissal so he could file an attorney's fees motion in a Lemon Law case.

        In other words, this case is identical to Hernandez.  Yet Plaintiff’s counsel in this matter failed to distinguish – or even mention –Hernandez in their motion. Professional Rules of Conduct, Rule 3.3(a)(2) “prohibits an attorney from (1) failing to disclose to (2) a tribunal (3) legal authority in this State that is (4) known to the lawyer to be directly adverse to the position of the client and (5) not disclosed by opposing counsel.”  (People v. Williams (2022) 75 Cal.App.5th 584, 586.)

“An attorney is an officer of the court and owes the court a duty of candor . . . The duty of candor is not simply an obligation to answer honestly when asked a direct question by the trial court. It includes an affirmative duty to inform the court when a material statement of fact or law has become false or misleading in light of subsequent events.”  (Levine v. Berschneider (2020) 56 Cal.App.5th 916, 921.)

The Court would like to hear from Plaintiff’s counsel during oral argument why it should not sanction counsel for failing to be honest and candid with this Court in its motion. 

BACKGROUND:

On June 1, 2022, Plaintiff Fernando Carmona filed his Complaint against Defendants FCA US, LLC and Arm and J Corporation on causes of action arising from Song-Beverly Consumer Warranty Act.

On May 9, 2023, Plaintiff filed: (1) Notice of Acceptance of Defendant FCA US LLC’s Amended Offer to Compromise; and (2) Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On September 14, 2023, the Court entered the Parties’ Stipulation and Order Requesting the Court Retain Jurisdiction Pursuant to Code of Civil Procedure § 644.6.

On September 15, 2023, the Court dismissed with prejudice the Complaint. By this time, no motion for attorney’s fees had been heard, despite prior orders of the Court requiring that such a motion be heard by the time of dismissal.

On November 9, 2023, Plaintiff filed his Motion for Relief Pursuant to CCP Section 473(b). In support of his Motion, Plaintiff concurrently filed: (1) Declaration of Stephen Parnell; and (2) Proposed Order.

No opposition or other response has been filed to the Motion.

ANALYSIS:

I.           Legal Standard

“The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . No affidavit or declaration of merits shall be required of the moving party. 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).)

II.       Discussion

Plaintiff moves the Court to vacate the dismissal of this matter so that a motion for attorney’s fees can be filed. (Motion, p. 7:1–5.) Plaintiff argues that this relief is appropriate because Plaintiff’s Counsel made a calendaring error which could have happened to anyone. (Id. at pp. 4–6.)

The Court disagrees with Plaintiff’s argument.

On May 9, 2023, Plaintiff filed: (1) Notice of Acceptance of Defendant FCA US LLC’s Amended Offer to Compromise; and (2) Judicial Council Form CM-200, Notice of Settlement of Entire Case.

On June 29, 2023, the Court ordered that any motion for attorney’s fees must be filed and heard by September 1, 2023. (Minute Order dated June 29, 2023, p. 1.)

On September 15, 2023, pursuant to an oral request made by Plaintiff, the Court dismissed with prejudice the Complaint.

Nearly two months later, Plaintiff’s Counsel filed this motion for relief and declares that they made mistake, inadvertence, surprise, or neglect.

Plaintiff’s failure to file the motion for attorney’s fees was not mistake, inadvertence, surprise, or neglect as that term is used in Code of Civil Procedure section 473, subdivision (b). (Hernandez v. FCA US LLC (2020) 50 Cal.App.5th 329, 332, 336–339.)

Perhaps more importantly, the mandatory provisions of CCP §473(b) concern vacating a dismissal or default. But this is not a case where Plaintiff was denied his day in court through attorney error.  As in Hernandez, “[t]his case was not dismissed because of the mistake or neglect of counsel. The case was dismissed because the parties had reached a settlement and [Plaintiff] has been paid in full under her settlement.” (Hernandez, supra, at p. 337.)  Plaintiff “had [his] day in court and consequently settled [his] case as the prevailing party. What [he] lost, for lack of a better word, was the opportunity to file and litigate [his] motion for attorney fees and costs before the court dismissed [his] settled case.  (Hernandez, supra, at p. 338.)   

As in Hernandez, “after the parties reached a settlement, the court used its inherent supervisory power to set the hearing on the OSC regarding dismissal 90 days out, providing counsel plenty of time to file the attorney fees motion, and allowing the trial court to ensure the timely and speedy resolution of the proceeding before it.” (Id.)

“Our reading of the mandatory provision of section 473, subdivision (b) and the long line of cases applying this section compels us not to endorse an overly expansive interpretation of the statute. Counsel missed the court-ordered deadline to move for attorney fees. Section 473 provides no relief for such error.” (Hernandez, supra, at p. 339.)

Thus, mandatory relief is inappropriate here. For these same reasons, discretionary relief is under section 473, subdivision (b) is also inappropriate.

Discretionary relief under CCP §473(b) is also inappropriate because Plaintiff’s Counsel did not attach a copy of the proposed motion for attorney’s fees to the attorney declaration submitted in support of the motion to set aside dismissal. Pursuant to the statute, “Application for this relief shall be accompanied by a copy of the . . . pleading proposed to be filed therein, otherwise the application shall not be granted. . . .”  (CCP §473(b).)  Failure to attach the proposed motion means the motion is not “in proper form” as that term is used in the statute, and hence the requirements of the statute were not met. (Hernandez, supra, at pp 336-337.)

III.     Conclusion

The Motion for Relief Pursuant to CCP Section 473(b) is DENIED.