Judge: Serena R. Murillo, Case: 20STCV31569, Date: 2023-04-27 Tentative Ruling
Case Number: 20STCV31569 Hearing Date: April 27, 2023 Dept: 29
TENTATIVE
Plaintiff’s
Untimely 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 discretionary relief prong states: “The court may, upon any terms as may be just, relieve a party or his or
her legal representative from a … dismissal… taken against him or her through
his or her mistake, inadvertence, surprise, or excusable neglect. Application
for this relief … shall be made within a reasonable time, in no case
exceeding six months, after the … dismissal … was taken.” (CCP section 473(b).) The mandatory prong states: “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 … dismissal entered
against his or her client….” (Id.)
Discussion
Plaintiff moves to set aside the
dismissal due to attorney mistake, inadvertence, or neglect. Plaintiff argues
he missed the trial by 12-15 minutes because he was unable to timely connect to
the teleconference. Plaintiff argues no authority deals with the issue of
whether an "at-fault" motion by an attorney should be denied solely
because the filing occurred six months after the dismissal.
A party seeking
relief under CCP section 473(b) from a dismissal must file the application for
relief within a reasonable time, in no case exceeding six months after the
dismissal is taken. The six-month limit is mandatory and a Court has no
authority to grant relief under CCP section 473(b) unless an application is
made within the six-month period. (Arambula v. Union Carbide Corp. (2005)
128 Cal. App. 4th 333, 340.) Accordingly, this six-month limit is
jurisdictional because the Court has no power to grant relief under CCP section
473(b) after that time. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901.)
Here, the action was dismissed on
February 16, 2022. The express language of
CCP section 473(b) is that the six-month time period begins to run when the
dismissal is taken, i.e., entered.
Case law holds
that six-month time period identified in CCP section 473(b) is the equivalent
of half a year and, under Government Code section 6803, is the equivalent of
182 days. (Davis v. Thayer, supra, 113 Cal.App.3d at 903.) Accordingly,
Plaintiff had 182 days, or until August 17, 2022, to file a motion for relief
under CCP section 473(b).
A review of the Court file reveals that the
Plaintiff first filed an ex parte application for relief under CCP section
473(b) on August 17, 2022. This was 182 days after the dismissal was taken on
February 16, 2022, and on the exact day of 182-day limit. However, Plaintiff
made no affirmative showing of good cause to seek relief through an ex parte
application. As a result, the Court denied the ex parte
application.
Plaintiff did not
promptly file a properly noticed motion for relief. Instead, Plaintiff waited
until April 7, 2023 to file her motion for relief under CCP section
473(b). Accordingly, the Court is without jurisdiction to grant
relief under CCP section 473(b).
As a separate, independent basis for providing relief,
Plaintiff also seeks relief pursuant to the Court’s inherent authority to
vacate a judgment obtained due to extrinsic mistake.
The terms
“extrinsic fraud or mistake” are interpreted broadly and cover almost any
circumstance by which a party has been deprived of a fair hearing. There
need be no actual “fraud” or “mistake” in the strict sense. However,
equitable relief is available only where the fraud or mistake was “extrinsic,”
meaning the party was denied the opportunity to be heard.
There are three
essential requirements to obtain relief on grounds of extrinsic fraud: (1) a
meritorious defense; (2) a satisfactory excuse for not presenting a defense to
the original action; and (3) diligence in seeking to set aside the
default/default judgment once it was discovered. (Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 982.) There is a strong public policy in favor
of the finality of judgments and only in exceptional cases should relief be
granted. (Ibid.)
Further, since
the equitable power of the court is being invoked, the relief sought is subject
to equitable defenses, including laches. Thus, relief may be denied if it is
shown that the moving party has been guilty of unreasonable delay in seeking
relief, causing prejudice to the opposing party. (McCreadie v. Arques (1967) 248
Cal.App.2d 39, 46 [plaintiff would be prejudiced by having to prove matters 5
years old if judgment set aside].) The greater the prejudice to the
responding party, the more likely it is that the court will determine that
equitable defenses such as laches or estoppel apply to the request to vacate a
valid judgment. (Rappleyea v. Campbell, supra, 8 Cal.4th
at p. 983.)
Here, the Court’s
inherent authority to vacate the dismissal is not available to Plaintiff
either. The last factor requires diligence in seeking to set aside the dismissal
once it was discovered. Assuming that Plaintiff discovered the case was
dismissed at the latest when her counsel filed an application for ex parte
relief on August 17, 2022, her counsel has not shown diligence in seeking to
set aside the dismissal. The motion to set aside the dismissal was filed on
April 7, 2023, almost eight months after counsel moved ex parte.
The motion is silent as to why it took so long to file this motion. This does
not show diligence.
Conclusion
Accordingly,
Plaintiff’s untimely Motion to Set Aside the Dismissal is DENIED.