Judge Ralph C. Hofer, Case Number: 22GDCV00590, Date: 2025-04-17 Tentative Ruling

This is an action brought by plaintiff Michael Miller alleging that defendant Richardson-Hudson Development Corp. dba Foxy’s Restaurant and its restaurant manager, defendant Ramiro Zombrano, engaged in civil rights violations when, while plaintiff, a physically disabled person due to his diagnosis of diabetes, was a customer at Foxy’s Restaurant in Glendale, accompanied by his dog Alvin, his licensed diabetic alert service animal. Defendant Zombrano told plaintiff he and his service animal had to leave the restaurant, then illegally asked to see the service animal license. Further, upon being presented with the license. Zambrano insisted that plaintiff and his dog leave the restaurant. The complaint alleges causes of action for civil rights violations and IIED. The complaint was filed on September 8, 2022.

The file shows that on January 25, 2023, plaintiff filed Requests for Entry of Default with respect to defendant Richardson-Hudson Development Corp. dba Foxy’s Restaurant (Richardson-Hudson) and defendant Ramiro Zombrano, which defaults were entered as requested the same date.

On June 15, 2023, the OSC was continued to June 28, 2023 due to the failure to submit a stand-alone proposed default judgment with the default judgment packet. On June 28 2023, the court noted that the Doe defendants had not been dismissed, and the OSC was continued to August 31, 2023.

On August 31, 2023, the court noted the request for default judgment had been rejected for lack of evidence of emotional distress, and damages sought which exceeded those sought in the complaint. The court also noted that the previous default of defendant Richardson-Hudson had been entered in error for lack of proper proof of service. The OSC was continued to November 15, 2023.

On November 15, 2023, counsel informed the court that counsel would be submitting a proposed order to serve Richardson-Hudson via the Secretary of State. The OSC was continued to February 8, 2024.

On December 14, 2023, the court signed an Order to Serve Richardson-Hudson Development Corp. Via the Secretary of State, ordering the Secretary of State to accept service on behalf of defendant Richardson-Hudson and to promptly give notice to defendant corporation of the service of process of the complaint and Request for Default Judgment against it by plaintiff.

On February 8, 2024, the court noted it had not received a proposed default judgment, and that the court would also have to receive the service on the Secretary of State, and the OSC was continued to April 29, 2024.

On April 29, 2024, there was no appearance by or for plaintiff or plaintiff’s counsel, and the court ordered the OSC hearing continued to July 18, 2024, and also set an OSC Re: Sanctions up to $250 against plaintiff and plaintiff’s counsel for failure to appear for the same date.

On May 29, 2024, plaintiff filed two proofs of service, one of the summons complaint and supporting documents and the request for entry of default and default judgment and supporting documents and one of a check payable to the Secretary of State, along with a request and order to serve defendant Richardson-Hudson via the Secretary of State. Both proofs of service show personal service on May 14, 2024.

On July 18, 2024, the court discharged the OSC for failure to file proof of service, and accepted the representation of counsel concerning her failure to appear on April 29, 2024, so also discharged the OSC re sanctions for failure to appear. The court noted that the request for default of defendant Richardson-Hudson had been rejected and the two proposed judgments had also been rejected. The OSC re entry of default judgment/default prove-up was continued to August 13, 2024. Documents were filed with the court on August 12, 2024, after hours, and two judgments were rejected.

On August 13, 2024, the court noted there had been no default judgment packet submitted (evidently the documents filed after hours the previous evening had not yet been entered into eCourt), and after conferring with counsel continued the OSC to October 16, 2024.

On October 16, 2024, the court found that defendant Zombrano (referred to by the court as “Zambrano”) was not properly served with the default judgment packet, and that plaintiff’s counsel had previously indicated plaintiff was going to dismiss defendant “Zambrano.” The minute order states:

“The Court has read and considered the plaintiff's Default Judgment Packet. The Court will award the amount stated in the Proposed Default Judgment Packet received 07/16/2024 with the exception of the punitive damages for an amount of $46,251.73.”

On January 15, 2025, the court noted that plaintiff had not dismissed defendant “Zambrano,” nor was a new Proposed Default Judgment submitted. The OSC was continued to February 13, 2025, and the court ordered, “Counsel to dismiss defendant Zambrano and submit a new Proposed Default Judgment.”

On February 13, 2025 the matter was called for hearing, and the court noted there was no appearance by or for plaintiff and no default package had been submitted. The minute order states, “The Court orders the Complaint filed by Michael Miller on 09/08/2022 dismissed without prejudice. Case is dismissed pursuant to CCP 583.410(a).”

Plaintiff Michael Miller filed this motion on February 14, 2025, the day after the case was dismissed on February 13, 2025. Plaintiff argues that the dismissal was the result of an excusable mistake of plaintiff’s attorney. Plaintiff argues that plaintiff prosecuted this matter and obtained a default against defendant Richardson-Hudson, and a default hearing was held on October 16, 2024, at which the court approved judgment against defendant Richardson-Hudson of damages in the amount of $23.370.00, attorney fees of $19,500.00 and costs of $2,424.14. [Wyatt Decl., para. 3].

A date for entering the default judgment was set for January 15, 2024, and the court directed plaintiff to file a proposed order reflecting the approved judgment against Richardson-Hudson ahead of the hearing. [Wyatt Decl., para. 4]. Counsel indicates that plaintiff delayed filing the proposed order to complete personal service of the default prove up package on defendant Zombrano so that plaintiff would have the ability to collect the judgment from defendant Zombrano as well as from defendant Richardson-Hudson, but plaintiff’s efforts were unsuccessful. [Wyatt Decl., para. 5]. The court directed plaintiff to file a proposed order for judgment against defendant Richardson-Hudson on or before the February 13, 2025 hearing date, but that plaintiff’s attorney, Kristen J. Wyatt, mistakenly calendared the continued hearing date for March 13, 2025, due to a note-taking error. [Wyatt Decl., para. 7].

Plaintiff indicates that as a result of counsel’s mistake, the proposed order for judgment was not filed with the court ahead of the hearing, and the court then ordered dismissal of the action for lack of prosecution. [Wyatt Decl., para. 8].

Plaintiff argues that this motion is timely filed one day after the dismissal, and the order dismissing plaintiff’s action for lack of prosecution can be set aside under CCP section 473(b).

Although the notice of motion refers to the conduct of counsel as excusable mistake, the memorandum appears to rely entirely on the portion of CCP section 473(b) providing for the provision of mandatory relief based on an attorney’s affidavit of fault.

“Notwithstanding any other requirement of this section, the court shall, whenever an application 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 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..”

This relief is mandatory, even where the attorney’s neglect is inexcusable. Beeman v. Burling (1990) 216 Cal.App.3d 1586,1604-1605; Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1036-1037.

“7. The Court directed Plaintiff to file a proposed order for judgment against Defendant Richardson Hudson Development, Corp., on or before the February 13, 2025 Hearing date. However, I mistakenly calendared the continued Hearing date for March 13, 2025, due to a note taking error. Handwritten notes made by me during the January Hearing inaccurately reflected the date of continuance as March 13, 2025, when in reality the Court set the continued Hearing for February 13, 2025. The error was the result of writing “3/13/25” instead of 2/13/25.”

8. As a result of my mistake, the proposed order for judgment against Defendant Richardson Hudson Development, Corp. was not filed with the Court ahead of the Hearing set for 8:30 a.m. on February 13, 2025 and I failed to appear at the Hearing. The Court ordered then dismissal of the action on February 13, 2025, for lack of prosecution.

10. On the evening of February 13, 2025, I discovered my error when checking the Court’s docket. Upon checking the docket, I found that the Court had ordered dismissal for lack of prosecution earlier that day. The docket was reviewed as a preliminary step in preparing the proposed order of judgment against Richardson Hudson Development Corp., which I planned to file the following day (February 14, 2025).”

It appears that the fault was solely counsel’s, and, although counsel does not clearly directly accept responsibility for the error, the affidavit attests to the attorney’s note taking and calendaring error.

The only question remaining under this provision is whether the resulting dismissal entered against the client was “in fact, caused by the attorney’s mistake, inadvertence, surprise or neglect.” CCP section 473(b). A trial court’s finding on the causation issue will be upheld on appeal so long as it is supported by substantial evidence. Milton v. Perceptual Development Corp. (1997, 2nd Dist.) 53 Cal.App.4th 861, 867.

It appears that the dismissal was entered as a result of the failure of counsel to see that the proposed judgment was filed before the OSC hearing, and to appear at the hearing, as noted in the attorney’s affidavit, as well as the failure to see that a dismissal of defendant Zombrano was entered.

“(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

As pointed out in the moving papers, this is not a case where the court has invoked any mandatory provision warranting dismissal for failure to prosecute. Hence, this situation is not a case where, for example, service was not made within three years or the matter was not brought to trial within permitted time limits.

The court notes that the affidavit of fault fails to acknowledge that the dismissal was entered in part because plaintiff failed to comply with the court’s order to dismiss defendant Zombrano. As set forth above, at the hearing on January 15, 2025, the court ordered, “Counsel to dismiss defendant Zambrano and submit a new Proposed Default Judgment.”

It is not clear from the affidavit or moving papers that counsel intended to file a dismissal of defendant Zombrano, as there is some suggestion plaintiff was previously attempting to preserve the default of that party. However, the proposed order submitted does not directly request judgment against that defendant. Thus, the court will assume that if relief is granted from the dismissal, plaintiff intends to submit a proposed judgment as well as a request for dismissal of Zombrano.

The motion is granted. The dismissal is set aside to permit plaintiff to submit a proposed judgment against defendant Richardson-Hudson Development Corp., accompanied by a request for dismissal of defendant Ramiro Zombrano.

The court notes that the proposed judgment attached to the moving papers as Exhibit A would not be approved by the court, as it seeks judgment against Defendant “Richard-Hudson” Development Corp., when plaintiff has been proceeding against a defendant named in this matter as “Richardson-Hudson” Development Corp. The proposed order in its current form also creates ambiguity by mentioning defendant Ramiro Zombrano, against whom the court will not be entering default judgment.

Plaintiff Michael Miller Motion for an Order to Vacate, Set Aside the Dismissal of this Case Which was Entered on February 13, 2025 is GRANTED pursuant to the mandatory provision of CCP section 473(b) based on the attorney’s affidavit of fault.

Plaintiff is ordered to efile this date a new Proposed Judgment in proper form against Defendant Richardson-Hudson Development Corp. as named in this action, and to dismiss defendant Ramiro Zombrano.

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