Judge: Steven A. Ellis, Case: 21STCV03213, Date: 2023-09-27 Tentative Ruling
Case Number: 21STCV03213 Hearing Date: September 27, 2023 Dept: 29
TENTATIVE
The Court GRANTS
Plaintiff’s motion to set aside the Court’s order of dismissal on July 27, 2022.
Legal
Standard
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. (Code
Civ. Proc. § 473(b).) 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 other proceeding was taken. (Ibid.) It is well settled that appellate courts have
always been and are favorably disposed toward such action upon the part of the
trial courts as will permit, rather than prevent, the adjudication of legal
controversies upon their merits. (Benjamin
v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.)
Code Civ. Proc. § 473(b) also contains a mandatory relief
provision. (SJP Limited Partnership
v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.) 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. (Ibid.) If the prerequisites of the mandatory relief
provision of section 473, subdivision (b) exist, the trial court does not have
discretion to refuse relief. (Ibid.)
Whenever relief is granted based on an attorney’s affidavit of
fault, the court shall direct the attorney to pay reasonable compensatory legal
fees and costs to opposing counsel or parties, in addition to whatever
additional fees are authorized by subdivision (c), of Code Civ. Proc. §
473. (J.A.T. Entertainment, Inc. v.
Reed (1998) 62 Cal.App.4th 1485, 1491.)
Whenever the court grants relief from a dismissal based on any grounds
in Code Civ. Proc. § 473, the Court may: (1) impose a penalty of no greater than
one thousand dollars ($1,000) upon an offending attorney or party; (2) direct
that an offending attorney pay an amount no greater than one thousand dollars
($1,000) to the State Bar Client Security Fund; or (3) grant other relief as is
appropriate. (Code Civ. Proc. §
473(c)(1)(A)-(C).)
Discussion
In support of
Plaintiff’s motion, counsel for Plaintiff, Alexander E. Gilburg (“Gilburg”) declares
that: (1) he maintains all case files in digital form and there are no paper
files (Gilburg Decl., ¶ 3); (2) after the case was filed, his employee, working
remotely, negligently and inadvertently misplaced the entire digital file for
this case and saved it into a directory for an unrelated case, which had been
closed several years ago, and misnamed the file directory (Id.); (3) he
failed to notice this error and the absence of this file in the case inventory
(Id.); (4) due to such error, he consequently failed to calendar any
dates for this case including the non-jury trial hearing on July 27, 2022 (Id.);
and (5) he simply forgot about this case (Id.)
Gilburg further
declares that: (1) upon receiving the order of dismissal in this case, he tried
but could not find the misplaced case file (Gilburg Decl., ¶ 4); (2) he has
spent a tremendous amount of time searching the digital file storage for active
cases without success (Id.); and (3) ultimately, after investing an
enormous amount of time, he finally found this file buried in a subdirectory
for one of his closed cases (Id.).
Initially, the
Court finds that Plaintiff’s motion is timely as it was filed within 6 months
after entry of judgment. Here, the Court finds that Plaintiff has made a
showing that the failure to appear at the July 22, 2022 non-jury trial was due
to counsel’s inadvertence and error as to counsel’s case management practices.
Therefore, the Court finds that Plaintiff has made a showing warranting
mandatory relief pursuant to SJP Limited Partnership v. City of Los Angeles,
supra, 136 Cal.App.4th 511, 516.
As Defendant has
not appeared or been served, there does not appear to be any basis to award any
fees to Defendant.
Under Code of
Civil Procedure section 473, subdivision (c), the Court has considered all of
the evidence in the record, and the explanation offered by Plaintiff’s counsel,
and exercises its discretion to require Plaintiff’s attorney to pay the amount
of $250 to the State Bar Client Security Fund.
The Court GRANTS
Plaintiff’s motion to set aside the Court’s order of dismissal on July 27,
2022.
Conclusion
The Court GRANTS Plaintiff’s motion to set aside the
Court’s order of dismissal on July 27, 2022.
The Court, on its own motion, sets an OSC regarding
service of process on Defendant in approximately 90 days.
The Court, on its own motion, sets a Trial Setting
Conference in approximately 120 days.
The Court ORDERS Plaintiff’s attorney Alexander Gilburg to
pay $250 to the State Bar Client Security Fund within 30 days, and to submit
proof of payment to the Court within 45 days.
(Pursuant to Code of Civil Procedure section 473, subdivision (c)(2),
the setting aside of the Court’s order of dismissal is not conditioned upon the
making of this payment, but the order to pay may be enforced through other
means.)
Moving party is ordered to give notice.