Case Number: BC494035 Hearing Date: May 23, 2014 Dept: 34

Moving Party: Plaintiffs Ruben Toxtle and Antonia Sanchez (“plaintiffs”)

Resp. Party: None

Plaintiffs’ motion for relief from dismissal is GRANTED.

BACKGROUND:

Plaintiffs commenced this action on 10/18/12, against defendants Carlos Vera, Maria Vera, and Does for: (1) breach of implied warranty of habitability; (2) negligent maintenance of premises; (3) maintenance of nuisance; (4) intentional infliction of emotional distress; (5) conversion; (6) damages for violation of statutory warranties; and (7) injunction to abate statutory warranties.

In January 2004, plaintiff Toxtle and defendants entered into a written agreement wherein defendants rented the subject property to Toxtle at a rate of $575.00 per month, which was increased over the next two years to $750.00 per month in May 2006. (Compl., ¶ 7.) The property had several areas where it needed repair, and which remain unfixed. (Id., ¶ 8.) Plaintiff has refused to pay rent since January 2011 because the premises were uninhabitable. (Id., ¶ 9.) There is no hot water and there exists an infestation of rodents and insects. (Id., ¶ 15.) Plaintiff has discovered that he was providing electricity to another dwelling unit and that defendants were collecting money from the other residents as reimbursement for money already paid by plaintiff. (Id., ¶ 19.) Defendants have filed several unlawful detainer actions against plaintiff, none of which were concluded in defendants’ favor. (Id., ¶¶ 10-13.)

Default was entered against defendants in May and July 2013.

On 8/20/13, defendant Carlos Vera filed a motion to set aside the default. On 9/20/13, the Court took this motion off calendar and ordered defendant to re-file. The Court also denied plaintiffs’ request for entry of default judgment.

On 12/6/13, the Court heard defendants’ renewed motion to set aside the defaults. The Court denied the motion and set an OSC re entry of default judgment for 2/18/14.

The OSC re entry of default judgment was called on 2/18/14 and plaintiffs were not ready to proceed on that date. The Court continued the matter to 4/17/14 and admonished “that if judgment has not been entered, this case may be dismissed on that date.” (Minute Order, 2/18/14.)

At the continued OSC on 4/17/14, the Court noted that plaintiffs had failed to obtain entry of default judgment as ordered. Plaintiffs misunderstood the Court’s order and believed that the request was to be submitted by 4/17/14. The Court reiterated that its order was that the case would be dismissed if default judgment had not been granted by that date. The Court denied plaintiffs’ oral motion for another continuance and ordered the case dismissed.

ANALYSIS:

Plaintiffs move for relief from the 4/17/14 dismissal pursuant to Code of Civil Procedure section 473(b) on the ground that the dismissal resulted from plaintiffs’ counsel’s mistake, inadvertence, surprise, or neglect.

A motion pursuant to Code of Civil Procedure Section 473 must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., §473(b)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. (See Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421-1422.) Plaintiffs filed the instant motion on 5/1/14 – two weeks after dismissal of this action.

Judges must vacate dismissals, default entries, and default judgments “whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney’s mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default.” (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927 [citing CCP §473(b)]. Accord Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258.) The mandatory relief provision of Section 473, based upon an attorney affidavit of fault, applies to a dismissal that is akin to a default. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 601 [lawyer’s failure to act timely]; In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1444 [counsel’s failure to appear at trial].)
“ ‘Although the language of the mandatory provision of section 473, subdivision (b), on its face, “affords relief from unspecified ‘dismissal’ caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ to undo dismissals of civil cases.” ’ [Citation.]” (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967.) The mandatory provision has been found to be inapplicable to a dismissal for failure to prosecute where the dismissal was not due to failure to oppose a motion to dismiss. (See Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1815-1824.) Allowing mandatory relief for all dismissals could cause absurd results: “A plaintiff who has failed to convince the trial court that the prosecution of the case was diligent would have the case dismissed. That same plaintiff would then jump back into court on a section 473 motion, accompanied by an attorney’s affidavit of negligence, and have the case reinstated based on the same facts offered, but discarded, in the hearing on the request to dismiss. The Legislature cannot have intended such an absurd result.” [Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 619 [internal quotations omitted].)

Here, the action was dismissed for plaintiff’s failure to prosecute. Defendant did not file a motion to dismiss, and therefore there was no failure to oppose it. At the hearing on 4/17/14, the Court heard, considered, and rejected plaintiffs’ reasons for its failure to timely obtain default judgment. (See Minute Order, 4/17/14.) Accordingly, the mandatory provision of section 473(b) does not apply.

Because the mandatory provision does not apply, the neglect must have been excusable. Excusable neglect exists where counsel acted as a reasonably prudent person would under the circumstances. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Attorney negligence is not a basis for discretionary relief under Code of Civil Procedure Section 473. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.) It is not clear to the Court that the proffered reason for the dismissal – plaintiffs’ counsel’s misunderstanding of the requirements of the 2/18/14 minute order – constitutes excusable neglect. (See Gebriel Decl., ¶ 3.) The 2/18/14 order clearly stated that “the court admonishes that if judgment has not been entered, this case may be dismissed on” 4/17/14. (See Minute Order, 2/18/14.) In fact, although the minute order states that
the case “may be dismissed,” the Court’s own notes indicate that the Court stated that the case WOULD BE DISMISSED if judgment had not been entered by 4/17/14. (The court, of course, understands that the Minute Order, and the not the Court’s untranscribed oral statements during the hearing, constitutes the Court’s Order.)

Counsel states that he misheard the Court’s 2/18/14 ruling; there is no explanation as to whether plaintiff at any point read the 2/18/14 minute order to ensure that he understood the order. Counsel’s actions fall on the borderline between excusable and inexcusable neglect.

However, the Court does not believe that the plaintiffs should lose their case because of the negligence or incompetence of their counsel. Were the court to deny this motion, the next step would no doubt be a malpractice action by the Plaintiffs against their counsel. This would not serve justice.

Therefore, the Court will exercise its discretion to GRANT plaintiffs’ motion for relief from dismissal.

The Court set an OSC re Entry of Default Judgment for _____________________. Should judgment not be entered by that date, the Court WILL DISMISS the action.