Judge: Serena R. Murillo, Case: 20STCV00410, Date: 2023-04-03 Tentative Ruling

Case Number: 20STCV00410    Hearing Date: April 3, 2023    Dept: 29

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED.

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal.  “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 through his or her mistake, inadvertence, surprise, or excusable neglect.”  CCP §473(b).  Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted.  (Id.)  The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.  (Id.)  In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment.  (Id.) 

Discussion

Plaintiff argues that due to his Plaintiff’s counsel’s inadvertence, mistake, and excusable neglect, the entire case was dismissed.

Plaintiff cannot obtain relief under the mandatory provisions of Code of Civil Procedure section 473(b) where an action is dismissed for failure to prosecute.  “Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].”  (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.) 

In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the Court stated:

An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes. 

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473. 

Although “[t]he purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney’s error, impose a burden on the attorney instead, and avoid additional malpractice litigation” (Matera v. McLeod (2006) 145 Cal.App. 44, 63 [reversing trial court’s denial of 473, subdivision (b), motion for relief from default judgment that was entered as a terminating sanction]), courts have construed the mandatory relief provision of section 473, subdivision (b), not to apply to discretionary dismissals, as “section 473 in effect [would] nearly nullif[y] the discretionary dismissal statutes, as few dismissals entered thereunder would ever assuredly be final” (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1816.)  

Here, the mandatory provision of section 473 is unavailable because the Court dismissed the action for Plaintiff’s failure to prosecute.  Plaintiff argues that Plaintiff’s former counsel Christine Avakian terminated her employment with Plaintiff’s counsel’s firm without notice in December of 2022, and Plaintiff’s counsel had to step in and take over as lead attorney on the file by correcting the deficiencies on the proof of service and other documents to obtain defaults against the two defendants. The Court finds the discretionary provision of section 473 is also unavailable because Plaintiff has failed to: (1) show the neglect at issue was “excusable,” and (2) make the motion within “a reasonable time.”  A showing of diligence is required when seeking discretionary relief.  (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.)

Here, the Court dismissed the matter on December 19, 2022, however, the motion was filed on March 3, 2023, and counsel has not explained why he waited two and a half months to file this motion.

Next, excusable neglect exists where counsel or the party acted as a reasonably prudent person would under the circumstances. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Attorney negligence is not a basis for discretionary relief under Code of Civil Procedure Section 473. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672.) Being busy and experiencing stress in meeting deadlines in the practice of law alone is not excusable neglect. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 [counsel unsuccessfully argued the stresses of a busy practice, the hurry to meet deadlines and obligations of other pending litigation].)

Here, counsel has not explained how it was excusable neglect not to correct the proof of services and obtain entry of default in this matter since February 4, 2022. Plaintiff was given five opportunities to do so. (See OSC minute orders for 2/4/2022, 6/10/2022, 6/24/2022, 8/16/2022, and 10/18/2022.) At more than one of these hearings, the Court warned that if no proof of service/request for default is filed prior to the next scheduled hearing date, the Court will dismiss this case. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default or dismissal.  (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.)  Plaintiff’s counsel has not explained why he or prior counsel did not remediate these issues prior to the dismissal on December 19, 2022. Without this explanation, the Court cannot find that there was a reasonable excuse for the dismissal for failure to prosecute. Moreover, while Plaintiff’s counsel moves for relief and argues dismissal was entered due to mistake or inadvertence, the Court finds that no mistake or inadvertence has been offered by counsel.

The court acted well within its discretion in dismissing this case for failure to prosecute. (See Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 762 [trial court has wide discretion to dismiss for failure to diligently prosecute and its decision will not be disturbed by an appellate court absent a manifest abuse of discretion.].)

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is DENIED.