SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiff Esther Naghi-Eghbal (“Plaintiff”) filed this action against defendant Century Hill Association (“Defendant”) for injuries arising from an alleged dangerous condition of Defendant’s property.   

On October 18, 2022, the Court granted Defendant’s unopposed motion for terminating sanctions on the grounds that Plaintiff failed to serve discovery responses in compliance with the Court’s August 18, 2022 Order. Plaintiff’s counsel did not appear at the hearing, and Plaintiff’s action against Defendant was dismissed. (Min. Order, Oct. 18, 2022.)  

On April 19, 2023, Plaintiff filed the instant motion to set aside the dismissal associated with the October 18, 2022 Order pursuant to the mandatory relief provision of attorney-fault.  

Defendant opposes the motion. Any reply was due on or before February 27, 2024; none was filed.   

 

II. Motion to Set Aside Dismissal 

CCP § 473(b) states: 

 

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… 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 … 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. 

(Emphasis added.)   

 

Accordingly, “An [a]pplication for discretionary relief must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) An application for mandatory relief must be made within six months after entry of judgment. (Ibid.) … 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.)   

In this case, Defendant’s motion for terminating sanctions was granted on October 18, 2022, and the Order dismissing Plaintiff’s complaint was entered that same date. Six months after this date, which is the date by which Plaintiff was required to file this motion for relief under CCP § 473(b), was April 18, 2023. However, Plaintiff did not file this motion until April 19, 2023, which is one day late.  Plaintiff’s motion is therefore untimely, and the Court has no authority to grant the requested relief under either the discretionary or mandatory provisions of CCP § 473(b).   

Additionally, a motion under CCP § 473(b) for relief from a terminating discovery sanction is “in proper form” if: (1) verified discovery responses are delivered to opposing counsel before the hearing on the application for relief and (2) the content of those responses substantially complies with applicable requirements.  (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 719-20.)  Plaintiff’s motion is bereft of any information regarding the discovery responses that led to terminating sanctions, and whether the issue has since been cured. Defendant, in opposition, avers the responses were indeed served, but they were late and remained deficient because it did not comply with the Discovery Act. As a result, Defendant filed motions to compel further, in which Plaintiff promised to provide supplemental responses at IDC on May 19, 2022. However, despite this, Plaintiff did not supplement the responses until the date of the hearing on Defendant’s motion to compel further responses to form interrogatories, which Defendant argues once again contained deficient responses. Defendant asserts Plaintiff failed to appear at the IDC on July 5, 2022, and since then, Plaintiff has not responded to Defendant’s attempt to discuss the deficiencies in the supplemental responses. Plaintiff did not file a reply, and presumably concedes to the contention that she has continually failed to serve responses in substantial compliance with the Discovery Act.  

 

Based on the foregoing, Plaintiff’s motion to set aside dismissal is DENIED.   

 

Moving party is ordered to give notice.