Judge: Richard S. Whitney, Case: 37-2021-00046820-CU-OR-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other Real Property Motion to Dismiss 37-2021-00046820-CU-OR-CTL MARIA DE JESUS ESCALANTE TRUSTEE OF THE ADALBERTO ESCALANTE TRUST DATED JULY 7 2017 VS MAGDALENO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT ELIZENDA ESCALANTE MAGDALENO'S MOTION TO SET ASIDE DISMISSAL ENTERED ON MARCH 7, 2023 is GRANTED.

Defendant ELIZENDA ESCALANTE MAGDALENO ('Defendant') seeks to set aside the dismissal because she did not agree to the stipulation signed by her former counsel that provided Defendant would pay Plaintiff Maria De Jesus Escalante's ('Plaintiff') attorney's fees and costs incurred to enforce the Joint Stipulation and Order filed on July 11, 2022 as ROA 15. The stipulation states the fees would be surcharged against Defendant via payment through Escrow from Defendant's share from the sale of the property. Defendant seeks relief under CCP sections 473(b). CCP section 473(b) provides, in part: 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.

(Code Civ. Proc., § 473.) CCP section 473 'is a remedial measure to be liberally construed, any doubts existing as to the propriety of the trial court's action will be resolved in favor of a hearing on the merits.' (Berman v. Klassman (1971) 17 Cal.App.3d 900, 910.) '[W]here there would have been no real prejudice had the set-aside motion been granted, the rule is that a party's negligence in allowing a default to be taken in the first place 'will be excused on a weak showing.'' (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 140.) The mandatory portion of CCP section 473(b) provides, in part: 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(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

2950595  67 CASE NUMBER: CASE TITLE:  MARIA DE JESUS ESCALANTE TRUSTEE OF THE ADALBERTO  37-2021-00046820-CU-OR-CTL Defendant appears to rely upon the mandatory portion of CCP section 473(b), but Defendant fails to provide a declaration from Defendant's former counsel as to the purported mistake and/or neglect to not obtain Defendant's authorization to enter into the stipulation entered on February 8, 2023. Therefore, Defendant cannot rely upon the mandatory portion of CCP section 473(b). The Court also notes that Defendant did not serve Defendant's former counsel with this motion.

Plaintiff asserts Defendant's argument as to lack of consent is moot because this Court had already ordered Defendant to bear the fees and costs of Plaintiff enforcing the Stipulation and Order filed on July 11, 2022. Indeed, this Court ordered on October 18, 2022, after an ex parte application to enforce the Stipulation and Order filed on July 11, 2022, that: All attorney's fees and costs, including, but not limited to escrow fees, county fees, arbitrator fees, mediation fees, court fees, process server fees, etc., for seeking the enforcement of the Stipulation filed July 11, 2022, shall be borne solely by Defendant via the marshalling of escrow fees from Defendant's sale proceeds, said costs to be proven up at a later hearing.

(ROA #30.) While the Court agrees that Defendant agreed to pay Plaintiff's attorney's fees and costs, Defendant did not agree to nor did this Court order the specific amount ($20,716.76) identified in the stipulation entered on February 8, 2023. The Court cannot conclude Defendant's argument is moot.

On the other hand, the Court finds that Defendant has sufficiently demonstrated that she was not informed of the stipulation entered on February 8, 2023, nor did she authorize it. The Court agrees that the stipulation as to the amount attorney's fees and costs was tantamount to a settlement, which requires approval from the client. (See Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404.) Thus, Defendant has demonstrated her 'legal representative' made a 'mistake' that resulted in a stipulated order from which Defendant seeks relief. While Defendant may not now challenge this Court's order that Defendant must pay for fees and costs, Defendant is permitted to challenge the amount of those fees and costs. In sum, the Court finds Defendant has demonstrated a 'mistake, inadvertence, surprise, or neglect' under CCP section 473(b) that entitles her, under the liberal standard, to relief from the stipulation as to the amount of the fees and costs. The motion is granted. A status conference is hereby set for December 8, 2023, at 10:00 am.

The Court notes that: Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(Code Civ. Proc., § 473(c)(1).) No parties has requested the imposition of any penalty. Therefore, at this time, the Court will not impose any penalty under CCP section 473(c)(1).

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