Case Number: BC643243 Hearing Date: April 03, 2018 Dept: 53

citizens bank, n.a. vs. nathan e. brookshire ; BC643243, APRIL 3, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION FOR ORDER VACATING ENTRY OF DISMISSAL

Plaintiff CITIZENS BANK, N.A.’s Motion for Order Vacating Entry of Dismissal is GRANTED.

BACKGROUND

Plaintiff Citizens Bank, N.A. (“Plaintiff”) filed this action on December 9, 2016 against Defendant Nathan E. Brookshire (“Defendant”). Defendant has not yet appeared in this case, and default has been entered against Defendant.

On January 10, 2018, Plaintiff did not appear at the hearing on an Order to Show Cause re: Failure to File Default Judgment and noted that no default judgment packet has been submitted. As a result, the Court issued an Order to Show Cause re: Dismissal or $500 Sanctions for Plaintiff’s Failure to Appear or Prosecute, which hearing was set for February 15, 2018. On February 15, 2018, Plaintiff failed yet again to appear. Accordingly, the Court ordered the case dismissed without prejudice and discharged the order to show re sanctions.

Plaintiff now moves for an order vacating the dismissal entered on February 15, 2018 based on the mistake, inadvertence, and/or excusable neglect of counsel. The motion is unopposed.

DISCUSSION

Code of Civil Procedure section 473(b) provides in 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.

Based on this statutory language, if a motion brought pursuant to Code of Civil Procedure section 473(b) is accompanied by an attorney affidavit of fault, relief is mandatory unless the default or dismissal did not in fact result from the attorney’s mistake, inadvertence, surprise, or neglect. (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604-1605.) The purpose of this mandatory relief provision is “to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 [internal quotations omitted].) To be entitled to mandatory relief, there is no requirement that counsel’s neglect be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) Indeed, section 473(b) “does not require an explication of reasons as a prerequisite to mandatory relief. … [W]hat must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) “[The] purposes [of section 473(b)] are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.” (Code Civ. Proc., § 473(b).)

In support of the motion, Plaintiff’s counsel has submitted a declaration attesting to his mistake, namely that he input the incorrect date for the OSC hearing into his calendar. (Andrade Decl., ¶ 3.) The Court finds that the declaration is sufficiently compliant with Code of Civil Procedure section 473(b).

CONCLUSION

Based on the foregoing, Plaintiff’s motion to vacate dismissal is GRANTED. The Court sets an Order to Show Cause re Default Judgment for May 3, 2018. Plaintiff is ordered to file the complete default package, compliant with the California Rules of Court, by April 19, 2018 with the Clerk’s Office.

Plaintiff is ordered to give notice of this ruling.

DATED: April 3, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court