Filed 4/13/20 Bar v. McPherson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ELIAHU BAR,

Plaintiff and Appellant,

v.

VALERIE ANN MCPHERSON,

Defendant and Respondent.

D075305

(Super. Ct. No. 37201700034185)

APPEAL from a judgment and order of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Reversed.

B&D Law Group; Amir S. Salehi, Daniel D. Geoulla and Michael B. Geoola for Plaintiff and Appellant.

No appearance by Defendant and Respondent.

Plaintiff Eliahu Bar appeals the judgment of dismissal (sometimes, judgment) and postjudgment order, after the court denied his motion to set aside a previous order dismissing without prejudice his action against respondent Valerie Ann McPherson. Bar sought relief from the judgment under Code of Civil Procedure section 473, subdivision (b) (hereinafter, section 473(b)). Bar contends the court erred when it denied his set-aside motion, arguing that relief under the statute was mandatory as a result of his counsel’s excusable neglect. We agree and thus reverse the judgment and postjudgment order.

FACTUAL AND PROCEDURAL BACKGROUND

Bar’s Complaint and the Judgment of Dismissal

Bar’s complaint arose from a two-car accident that occurred in La Jolla, California. Bar filed his complaint on September 14, 2017, alleging causes of action for general negligence and for violation of the Vehicle Code.

The complaint alleged that on or about September 19, 2015, McPherson drove her car in a negligent manner, resulting in Bar’s injuries and damages. The complaint specifically alleged that McPherson was driving her car too closely behind Bar’s car and at a speed greater than was reasonable or prudent, in violation of California Vehicle Code sections 21703 and 22350, respectively. Bar’s complaint identified B&D Law Group as his counsel of record (sometimes, B&D), with an office located in Los Angeles, California.

On February 21, 2018, B&D filed a case management statement for a case management conference (CMC) scheduled for March 9, 2018. B&D failed to appear for the March 9 hearing. The court set an OSC hearing for March 29. However, B&D also failed to appear at the March 29 OSC, leading the court to dismiss Bar’s action without prejudice.

On or about April 6, B&D discovered Bar’s case had been dismissed. Bar’s counsel took the position that Bar’s action could not be refiled because his claims would be barred by the applicable statutes of limitations. As such, B&D on behalf of Bar filed under section 473(b) an unopposed motion to set aside the dismissal and reinstate his action. B&D attached as an exhibit a document that verified its office had arranged for an attorney to appear at the March 9 CMC, but due to inadvertence, that attorney had appeared not in Department C66 of the San Diego County Superior Court, where the matter was to be heard, but instead in Department C66 of the Orange County Superior Court, Santa Ana division. B&D also included an affidavit under penalty of perjury from one of its attorneys explaining the mix-up with respect to the CMC and the fact B&D had not received notice of the March 29 OSC.

On June 22, B&D called the court and submitted to the court’s tentative, which was to grant Bar’s motion under section 473(b). The court recalendared the CMC for July 13. However, B&D again failed to appear for the CMC. As a result, the court scheduled an OSC hearing for July 27 regarding why Bar’s action should not be dismissed. B&D also failed to appear at the July 27 OSC hearing, leading the court for a second time to dismiss Bar’s action without prejudice.

Bar’s Second Motion to Set Aside the Dismissal

On August 15, 2018, B&D again sought relief under section 473(b) to set aside the dismissal and reinstate Bar’s action, based on among other grounds counsel’s excusable neglect in failing to appear at the July 13 CMC and July 27 OSC hearings. As required by section 473(b), B&D in support of its motion filed sworn affidavits from both B&D attorney Amir S. Salehi and his legal secretary, Jessica R. Geoola.

B&D attorney Salehi stated under penalty of perjury that he had e-mailed Geoola to calendar the July 13 CMC; that Geoola “inadvertently” failed to calendar the July 13 CMC; and that as a result, B&D failed to appear at the July 13 CMC. Because no appearance had been made on Bar’s behalf at the July 13 hearing, B&D was unaware of the July 27 OSC, nor did the firm receive notice of the OSC hearing until the “afternoon of July 27,” after it had taken place. As such, Salehi took full responsibility for B&D’s failure to appear at either July hearing, noting such failure constituted “excusable neglect” under section 473(b).

Geoola’s affidavit, also filed under penalty of perjury, stated she was the person in “charge of calendaring” matters for B&D and ensuring that all hearings were covered “either by the handling attorney or an associate”; that on June 22, Salehi e-mailed her with the “case information” and the new CMC date, asking they be calendared; that her custom and practice was to enter “immediately” such information into B&D’s calendaring system; and that in the instant action, she “inadvertently missed calendaring” the July 13 CMC.

Geoola further declared on the afternoon of July 27, she reviewed the mail received by the firm between July 25 (a Saturday) and July 27. It was then she discovered for the first time the OSC set for earlier that morning.

On November 2, the court heard oral argument on Bar’s second set-aside motion brought under section 473(b). The court at the unrecorded hearing denied Bar relief.

DISCUSSION

A. Guiding Principles

Section 473(b) provides in relevant part, “Notwithstanding any other requirements of this section, the 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.” (Italics added.)

In interpreting a statute, we begin by examining its words, affording them “their ordinary and usual meaning and viewing them in their statutory context.” (Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198.) ” ‘[I]f the statutory language is not ambiguous, then . . . the plain meaning of the language governs.’ ” (People v. Montes (2003) 31 Cal.4th 350, 356 (Montes).)

The plain and unambiguous language of section 473(b) provides a court “shall” grant relief and “vacate . . . a dismissal” when based on “an attorney’s sworn affidavit attesting to his or her . . . or neglect” (§ 473(b)); “unless the court finds that the default or dismissal was not in fact caused by the attorney’s . . . neglect.” (Ibid.; see Montes, supra, 31 Cal.4th at p. 356; Urban Wildlands Group, Inc. v. City of L.A. (2017) 10 Cal.App.5th 993, 996–997 (Urban) [recognizing that “[m]andatory relief [under section 473(b)] is available when an attorney submits an affidavit attesting to his or her mistake, inadvertence, surprise, or neglect resulting in a default or dismissal”].) Furthermore, mandatory relief provisions are applicable when the court-ordered dismissal is not on the merits. (See Urban, at p. 1002.)

The range of attorney conduct for which relief is available in the mandatory provision of section 473(b) is broad. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 616.) Moreover, we note that section 473 is to be liberally construed. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256 (Zamora).)

” ‘It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.’ ” (Zamora, supra, 28 Cal.4th at pp. 255–256.) The purpose of the relief available under section 473, subdivision (b) 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.’ ” (Id. at p. 257; see Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 [noting “[u]nless inexcusable neglect is clear, the policy favoring trial on the merits prevails”].)

“When the decisive facts are undisputed, we are confronted with a question of law and are not bound by the findings of the trial court.” (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 (Ghirardo).)

B. Analysis

We first consider the timeliness of Bar’s application for relief. In order to be timely, the application must be made no more than six months after entry of judgment.

(§ 473 (b).)

Here, B&D on August 15, 2018 filed a second motion to set aside the judgment and reinstate Bar’s action, after the court had dismissed it without prejudice on July 27. Because Bar—through B&D—moved for relief under section 473(b) about 19 days after his action had been dismissed, his application was timely under the statute.

As noted, relief under section 473(b) is mandatory when “an attorney submits an affidavit attesting to his or her inadvertence, surprise, or neglect resulting in a default or dismissal of the action.” (Urban, supra, 10 Cal.App.5th at pp. 996–997.)

As summarized ante, Bar’s counsel B&D submitted two uncontested sworn affidavits attesting to B&D’s failure to appear based on excusable neglect. As noted, Salehi under penalty of perjury stated that he specifically instructed his legal secretary on or about June 22 to calendar the newly set July 13 CMC hearing; that Geoola, who was in charge of the firm’s calendaring and arranging for its attorneys to appear at court hearings, inadvertently failed to put the July 13 hearing into the firm’s calendaring system; and that, as a direct result of her omission, B&D did not appear at the July 13 CMC. What’s more, the record shows B&D only learned of its failure to appear at the July 13 CMC and, as a result, at the July 27 OSC, in the afternoon of July 27, when Geoola opened the firm mail it had received over the weekend and discovered the OSC notice from the court.

From the foregoing, we independently conclude the court erred in not granting Bar relief under the mandatory provision of section 473(b). (See Ghirardo, 8 Cal.4th at

p. 799.) Our decision in this case also favors the policy of interpreting the provisions of section 473(b) broadly (see Zamora, supra, 28 Cal.4th at p. 255), and of having cases decided on the merits. (See id. at p. 256.)

DISPOSITION

The judgment of dismissal, and postjudgment order denying Bar relief under section 473(b), are reversed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

GUERRERO, J.