Case Number: BC692320 Hearing Date: June 06, 2019 Dept: 4A

Motion to Set Aside Dismissal

Having considered the moving and opposing papers, the Court rules as follows. No reply was filed.

BACKGROUND

On January 31, 2018, Plaintiffs Robert Glen Batchko, Kimberly Batchko, and Maxwell Batchko (“Plaintiffs”) filed a complaint against Defendant Stephen Homer Day (“Defendant”) alleging negligence for an automobile collision that occurred on February 2, 2016.

On December 4, 2018, the Court ordered Plaintiffs to serve verified responses without objections to Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) within 30 days.

On April 4, 2019, the Court dismissed Plaintiffs’ complaint without prejudice for Plaintiffs’ failure to comply with the Court’s December 4, 2018 order.

On May 9, 2019, Plaintiffs filed a motion to set aside the April 4, 2019 dismissal due to their counsel’s mistake, inadvertence, surprise, or neglect.

PARTIES’ REQUEST

Plaintiffs request that the Court set aside the September 20, 2018 dismissal a pursuant to California Code of Civil Procedure section 473, subdivision (b).

Defendant requests that the Court order Plaintiffs to pay Defendant $700.00 in monetary sanctions for opposing the motion to set aside.

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (b) states: “. . . [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 . . . 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. . . .”

Relief is mandatory when an attorney files the required affidavit, even if the attorney’s neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)

“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)

DISCUSSION

Plaintiffs’ counsel declares that the ordered responses were drafted, but not verified or mailed. (Baghdassarian Decl., ¶ 5.) Plaintiffs’ counsel implies that this was due to staffing issues and Plaintiffs’ counsel’s failure to supervise his staff. (Baghdassarian Decl., ¶¶ 3-6, 10.)

The Court finds Plaintiff’s counsel’s declaration to be satisfactory. Plaintiff’s counsel has admitted that the dismissal was due to counsel’s neglect. As such, relief from the dismissal is mandatory.

Defendant’s counsel requests $700.00 in monetary sanctions for one hour drafting the opposition and supporting declaration and three hours attending the hearing on this motion, all at a rate of $160.00 an hour, plus one $60.00 filing fee. (Gamboa Decl., ¶ 8.) The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiffs’ counsel for his mistake.

Plaintiff’s motion is GRANTED.

The Court vacates the April 4, 2019 dismissal.

The Court orders Plaintiffs’ counsel of record to pay $700.00 to Defendant within 30 days of this order.

The Court orders Plaintiffs and Defendant to appear at a trial setting conference on June 13, 2019 at 8:30 a.m. in Department 4A at Spring Street Courthouse, 312 North Spring Street, Los Angeles, California 90012.

Plaintiff is ordered to give notice.