Judge: Steven A. Ellis, Case: 22STCV18960, Date: 2025-03-05 Tentative Ruling

Case Number: 22STCV18960    Hearing Date: March 5, 2025    Dept: 29

Fergusson v. Los Angeles County MTA
22STCV18960
Motion to Set Aside Dismissal filed by Plaintiff Leanna Fergusson.

Tentative

The motion is granted.

Background

On June 9, 2022, Leanna Fergusson (“Plaintiff”) filed a complaint against Los Angeles County MTA (“Defendant”) and Does 1 through 100 for motor vehicle negligence and general negligence arising out an incident on October 2, 2021, in which, Plaintiff claims, Defendant’s vehicle’s wheelchair ramp deployed on to Plaintiff’s foot.

On August 9, 2023, Defendant filed an answer.

On June 24, 2024, Plaintiff’s counsel’s motion to be relieved was granted.  The order is effective on the filing of a proof of service of the signed order on the client.  Counsel never filed a proof of service.

Trial was set for September 5, 2024.  When Plaintiff did not appear at the time of trial, the complaint was dismissed.

On February 5, 2025, Plaintiff (through counsel) filed this motion to set aside the dismissal. Defendant filed an opposition on February 20, 2025.

Legal Standard

Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from dismissal.

As to discretionary relief, the statute states: “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.”  (Code of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; “otherwise the application shall not be granted.”  (Ibid.)  

The statute also provides for mandatory relief from dismissal, default, or default judgment:

“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 … unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(Ibid.)

A request for discretionary relief under section 473, subdivision (b), must be made (subject to certain exceptions) “within a reasonable time, in no case exceeding six months.”  (Ibid.)  A request for mandatory relief must be made within six months.  (Ibid.)

Discussion

Plaintiff seeks to set aside the dismissal order entered on September 5, 2024, based on Plaintiff’s failure to appear at trial.

In May 2024, Plaintiff’s counsel George Mgdesyan filed a motion to be relieved.  The motion was granted, but the Court’s order expressly states that the order is “effective upon the filing of the proof of service of this signed order upon the client.” 

No proof of service was ever filed.  Accordingly, the order granting the motion to be relieved is not yet effective, and Mr. Mgdesyan remains Plaintiff’s counsel of record.

In support of this motion to set aside the dismissal, Mr. Mgdesyan files a declaration stating that the failure to file the required proof of service was due to his mistake.  (Mgdesyan Decl., ¶ 1.)  Because he (incorrectly) believed that the proof of service had been filed, and that the order granting the motion to be relieved had taken effect, Mr. Mgdesyan did not appear at trial and did not believe that he had any reason to appear at trial.  (Ibid.)

Plaintiff satisfies the requirements for mandatory relief under Code of Civil Procedure section 473, subdivision (b).  Counsel did not appear at trial due to his mistake, and that mistake led to the dismissal of the complaint. 

Defendant argues this motion is improper as it is not being sought by Plaintiff herself.  But the order granting Mr. Mgdesyan’s motion to be relieved has not yet taken effect; accordingly, he is still Plaintiff’s counsel of record and still has the power and authority to act on her behalf, including (but not limited to) in connection with the filing of this motion.  Whether Plaintiff did or did not receive service of the Court’s order (or otherwise know about it) is not the issue; Mr. Mgdesyan remained (and to this day remains) her counsel of record, and he failed to appear at trial due to his mistake.

Code of Civil Procedure section 473, subdivision (c), also provides as follows:

“(1) 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.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

The Court has reviewed the file and considered the evidence in the record.  The Court exercises its discretion, upon granting relief under Code of Civil Procedure section 473, to direct that the offending attorney, George Mgdesyan, Esq., pay the amount of $250 to the State Bar Client Security Fund.  (Code Civ. Proc., § 473, subd. (c)(1)(B).)

Conclusion

The Court GRANTS Plaintiff’s motion to set aside the dismissal.

The Court SETS ASIDE the dismissal entered on September 5, 2024.

Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS Plaintiffs’ counsel George Mgdesyan, Esq., to pay $250 to the State Bar Client Security Fund, and to file proof of payment with the Court, within 30 days.

The Court sets a Trial Setting Conference on April __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

The Court sets an OSC re proof of payment of $250 by counsel George Mgdesyan, Esq. to the State Bar Client Security Fund on April __, 2025, at 8:30 am in Department 29 of the Spring Street Courthouse.

Plaintiff is ordered to give notice.