Judge: Yolanda Orozco, Case: 22STCV18695, Date: 2023-05-05 Tentative Ruling
Case Number: 22STCV18695 Hearing Date: May 5, 2023 Dept: 31
PROCEEDINGS: MOTION TO SET ASIDE DISMISSAL AND REINSTATE ACTION
MOVING PARTY: Plaintiff Michael Allison
RESP. PARTY: Defendant Doncasters Certified Alloy Products
MOTION TO SET ASIDE DISMISSAL AND REINSTATE ACTION
TENTATIVE RULING
.Plaintiff’s Motion to Set Aside Dismissal and Reinstate Action is GRANTED. Matter is set for CMC June 5, 2023, 8:30 am, Dept.31
Background
On June 07, 2022, Plaintiff filed a Complaint against Defendant Doncasters Certified Ally Products Inc. and Does 1 to 50. The Complaint alleged causes of action for:
1) Disability Discrimination;
2) Failure to Engage in a Timely Interactive Process;
3) Failure to Accommodate;
4) Failure to Prevent Discrimination;
5) Violation of California Family Rights Act; and
6) Interference with California Family Rights Act.
On December 06, 2022, the Court dismissed the action without prejudice due to Plaintiff’s failure to prosecute and appear on October 06, 2022, and December 06, 2022.
On January 17, 2023, Plaintiff filed a Motion to Set Aside/Vacate Dismissal and to Reinstate the Action.
Defendant filed opposing papers on April 21, 2023.
Plaintiff filed a rely on April 28, 2023.
Legal Standard
California Code of Civil Procedure section 473 subdivision (b) provides for both discretionary and mandatory relief. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) Mandatory relief from default, default judgment, or dismissal is available based on an attorney’s affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26.)
The mandatory provision states in the pertinent part:
“[T]he 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.”
(Code Civ. Proc., § 437 subd. (b).)
“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723.) 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 the opposing party. (Code Civ. Proc., § 473 subd. (b)).
Discussion
Plaintiff moves for an order setting aside the dismissal and reinstating the action based on the mandatory relief provision of Code of Civil Procedure section 473 subdivision (b).
Plaintiff’s motion is accompanied by Plaintiff’s counsel declaration attesting that he failed to appear at the December 06, 2022 hearing due to a calendaring error listing the hearing date as January 06, 2023. (Lucian Decl. ¶ 4, Ex. 1.) Plaintiff’s counsel started radiation therapy in November of 2022 and has trouble remembering such that he has no recollection of the mis-calendared event. (Lucian Decl. ¶ 3, Ex. 2.)
Courts have found excusable neglect based on calendaring errors. (See Renteria v. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 911; Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276.) Therefore, the Court finds Plaintiff’s counsel’s calendaring error to be excusable. Moreover, a party’s motion for mandatory relief only requires that counsel attest to their mistake, inadvertence, surprise, or neglect, and not the reasons for it. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)
Plaintiff’s Motion is also timely as it was filed within six months. Therefore, relief is mandatory, 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].)
Plaintiff’s Motion is GRANTED.
Reasonable attorney’s fees and costs are mandatory when granting a motion for relief based on an attorney’s affidavit of fault. However, Defendant has not requested fees despite opposing the motion and has not provided the Court with any basis for which to calculate its fees. Therefore, the Court declines to award any attorney’s fees in connection with this motion.
Conclusion
Plaintiff’s Motion to Set Aside Dismissal and Reinstate Action is GRANTED. Matter is set for Case Management Conference June 5, 2023, 8:30 am, Dept. 31.
Moving party to provide notice.