SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On April 27, 2021, Plaintiff Angela Hoenig (“Plaintiff”) filed this action against Defendants Demian Gregory, Gregory McKay, and A Beautiful Confusion Production, LLC for damages arising from a dog bite.    

On November 7, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel, wherein the ruling would be effective upon filing proof of service of the final order. (Min. Order, Nov. 7, 2022.)  

On August 21, 2023, this matter was called for a non-jury trial, and after no appearances by or for either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Aug 21, 2023.) The certificate of mailing of the dismissal was addressed to Plaintiff’s counsel, Brett Yorke, Esq (“Counsel”).    

On September 14, 2023, Plaintiff’s counsel filed the instant motion to vacate the dismissal and to allow Counsel to file proof of service of the order granting Counsel’s motion to be relieved as counsel.   

 

II. Motion to Set Aside  

Code Civ. Proc. (“CCP”) § 473 provides for both discretionary and mandatory relief under certain circumstances. “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.” (CCP § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.)  “[T]he 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.”  (Ibid.) 

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)    

Here, Counsel declares Plaintiff is in pro per. Counsel provides no one appeared for trial on August 21, 2023, because Counsel’s office mistakenly believed the Order granting their motion to be relieved as counsel was effective because of the Notice of Ruling. However, Counsel also provides that upon investigating why it was Counsel who was served with the August 21, 2023 dismissal instead of Plaintiff, Counsel avers it was their mistaken belief that Notice of Ruling was effective, and that Counsel did not instead file a Proof of Service of Order Relieving Counsel to be recognized as giving effect to Counsel’s withdrawal from representation. Counsel requests the Court vacate the dismissal to allow for the filing of a Proof of Service of Order Granting Motion to Be Relieved so that future notices are served properly on Plaintiff directly as to provide Plaintiff notice.  

The timely filed motion establishes dismissal was the result of Counsel’s excusable neglect for failure to appear due to a misunderstanding regarding the Order to be relieved as counsel. The motion to set aside the dismissal is GRANTED and the action is reinstated.    

 

Counsel is ordered to give notice.   

 

 

Dated this 9th day of November 2023