Judge: Virginia Keeny, Case: 19STCV26975, Date: 2023-05-16 Tentative Ruling

Case Number: 19STCV26975    Hearing Date: May 16, 2023    Dept: W

JUDY LEA, et al. v. DASHING PROPERTIES MANAGEMENT, INC., et al.

plaintiffs’ motion for order granting relief from dismissal

Date of Hearing:        May 16, 2023                                    Trial Date:       N/A

Department:              W                                                        Case No.:        19STCV26975

Moving Party:            Plaintiffs Judy Lea, Carlos Booy, Bohdi Booy, a minor by and through his parent and guardian ad litem Judy Lea

Responding Party:     No Opposition.  

BACKGROUND

On September 5, 2019, Plaintiffs Judy Lea, Carlos Booy, Bohdi Booy, a minor by and through his parent and guardian ad litem Judy Lea, filed a first amended complaint against Defendants Dashing Properties Management, Inc., Reza Safaie, 4528 Colbath LLC, Zelzah Garden Homeowners Association, and Hooshman Aghilimehr. Plaintiffs allege Defendants negligently owned, possessed, worked upon, managed, supervised, modified, repaired, operated, maintained, designed, or controlled certain premises which allowed mold to exist and caused injuries to Plaintiffs.

[Tentative] Ruling

Plaintiffs Judy Lea, Carlos Booy, Bohdi Booy, a minor by and through his parent and guardian ad litem Judy Lea’s Motion for Order Granting Relief from Dismissal is GRANTED.

DISCUSSION

Plaintiffs move for an order granting relief from the dismissal that was entered on January 27, 2021, after Plaintiff’s counsel inadvertently failed to appear at the January 13, 2021 Final Status Conference and the January 27, 2021 OSC re dismissal for failure to prosecute.

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (CCP §473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (CCP §473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)  Relief under CCP § 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.”  (Aldrich v. San Fernando Valley Lumber Co., Inc.¿(1985) 170 Cal.App.3d 725.) 

Dismissal was entered January 27, 2021. Plaintiffs first filed their ex parte application, July 27, 2021, six months later. The court finds the motion timely. Additionally, the court finds Plaintiff’s declaration sufficiently demonstrates mistake, inadvertence, surprise, or neglect. Counsel attests on July 4, 2020, the Law Offices of Gerald L. Marcus' server and network computers were attacked and penetrated with ransomware. (Consolo Decl. ¶6.) The server files, including the office calendaring/appearance system became encrypted and locked by the attackers. (Consolo Decl. ¶7.) On July 5, 2020, Mitchell Goujon, IT specialist at the Law Offices of Gerald L. Marcus, began the process of rebuilding the network with hope that all data could be recovered. (Consolo Decl. ¶7.) Efforts to rebuild the data was unsuccessful so Plaintiffs’ counsel began the laborious task of manually inputting the appearance dates of each of their open litigation files into the newly rebuilt calendaring system. (Consolo Decl. ¶8.) Unfortunately, this case slipped through the cracks of that process. (Consolo Decl. ¶10.) As a result, counsel failed to attend the January 13, 2021 Final Status Conference. (Consolo Decl. ¶11.) Moreover, due to personal reasons of the legal secretary, the Minute Order from the FSC was erroneously not calendared. (Consolo Decl. ¶12.)

Therefore, relief is mandatory, as the Court lacks the discretion to refuse relief. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226 [“‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation].” [internal quotations omitted].)