Judge Upinder S. Kalra, Case Number: 21STCV10682, Date: 2023-05-24 Tentative Ruling

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RESPONDING PARTY(S): Defendants Marc Appell, Esq., Law Offices of Marc Appell, aka Marc J. Appell, Esq

On March 19, 2021, Plaintiff Leslie Torres (“Plaintiff”) filed a complaint against Defendants Marc Appell, Esq., Law Offices of Marc Appell, aka Marc J. Appell, Esq. (“Defendants.”) The complaint alleges 2 causes of action: (1) Legal Malpractice and (2) Breach of Contract. The complaint alleges that after Plaintiff was in a car accident as a passenger in a LYFT vehicle, she contacted Defendant attorney’s law offices. After two years, Plaintiff learned that Defendant had not completed an investigation, submitted letters to LYFT’s insurance company, filed a lawsuit, or negotiated a settlement.

On July 21, 2021, a case management conference was conducted and trial was initially set for November 1, 2022.

On October 14, 2022, Defendant’s Ex Parte Application to continue the final status conference to January 13, 2023 and trial to January 24, 2023 was granted.. Defendant was ordered to give notice.[1]

On January 13, 2023, Plaintiff failed to appear at the final status conference and was taken off calendar. Trial was continued to February 16, 2023, and Defendant was ordered to give notice.[2]

On February 16, 2023, the Court dismissed this case without prejudice, as Plaintiff did not appear for trial.

On March 21, 2023, Plaintiff filed a Motion to Set Aside/Vacate Dismissal. Defendants’ Opposition was filed on May 11, 2023.

“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… [The application] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” CCP § 473(b).

Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495. “The defendant must … demonstrate a satisfactory excuse for not responding to the original action in a timely manner.” Id. at 504. Moving parties have the initial burden to prove excusable neglect by a preponderance of competent evidence. Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.

Plaintiff moves to set aside the dismissal entered by this Court on February 16, 2023.

Plaintiff argues that the dismissal must be set aside pursuant to CCP § 473(b) based on attorney’s mistake, inadvertence, surprise, or neglect. Here, Plaintiff’s counsel was engaged in another trial at the same time. Counsel mistakenly thought that notice was sent to this court about counsel’s engagement in another trial.

Defendant argues that the dismissal should not be set aside because it was not mistake or inadvertence that resulted in counsel missing trial, but rather knowing and voluntarily failure to appear for trial. Plaintiff’s counsel states that he mistakenly thought he provided notice, not that he miscalendered the date or forgot that trial was going to start in February. Failure to provide notice of engagement in another trial is not sufficient to grant relief under CCP § 473(b).

The Court finds that Plaintiff’s Counsel has established good cause to set aside the dismissal of the complaint.” Indeed, inexcusable neglect is precisely the kind of attorney neglect contemplated by the provision for mandatory relief under section 473, subdivision (b).” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492–493 [211 Cal.Rptr.3d 137, 149.) Here, it was neglect, more like inexcusable, that caused Plaintiff’s counsel to not attend the trial scheduled for 2/16/2023. As stated in Martin Potts & Associates, “The purpose of section 473, subdivision (b) generally is “to promote the determination of actions on their merits.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) While the Court agrees that the neglect and mistake is in failing to file for a continuance either by application or motion, as opposed to simply providing notice of engagement, the Court necessarily would have been required to find Good Cause for a continuance since counsel was engaged in trial. Further, the mandatory relief provision’s has three purposes: “(1) “to relieve the innocent client of the consequences of the attorney's fault”; (2) “to place the burden on counsel”; and (3) “to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.” (Id.) Thus, it was not a mistake of an innocent client, Plaintiff, that caused the dismissal, but rather Plaintiff’s counsel, as he neglected to attend trial or to seek relief beforehand. Accordingly, Plaintiff is entitled to the mandatory relief of this section.

Moving party is to give notice. Trial setting conference will be held at the motion hearing.

[1]Defendant failed to filed proof of service that notice of this trial continuance was actually given.

[2]Defendant filed proof of service of notice of the trial date on January 13, 2023.