Case Number: BC527716 Hearing Date: August 28, 2019 Dept: 34

SUBJECT: Motion to Vacate Dismissal

Moving Party: Plaintiff James Murtagh, M.D.

Resp. Party: None

Plaintiff’s motion to vacate dismissal is GRANTED.

BACKGROUND:

Plaintiff James Murtagh M.D. commenced this action against Defendant Clark Baker on November 14, 2013. Plaintiff filed a first amended complaint on January 24, 2014. Plaintiff filed a second amended complaint on August 18, 2014. Plaintiff filed a third amended complaint (“TAC”) on February 18, 2015 against Clark Baker and Office of Medical & Scientific Justice, Inc. (1) IIED; (2) NIED; (3) negligence; (4) defamation; (5) violation of Civil Code section 1798.5; (6) intentional interference with prospective economic advantage; (8) invasion of privacy; (9) violation of Business and Professions Code section 17200; (10) violation of Civil Code section 3344; (11) unauthorized use of name/likeness; and (12) declaratory relief.

On January 27, 2015, the Court denied Defendants’ special motion to strike Plaintiff’s complaint. The Court found that, though the alleged statements were made in a public forum, they did not pertain to a matter of public interest.

On July 17, 2015, Defendants filed a notice of stay of proceedings pending a bankruptcy action. Another notice of stay was filed on October 8, 2015.

On July 9, 2019, the Court ordered the complaint filed by Plaintiff dismissed with prejudice, as there was no appearance by or for either side nor any communication with the Court as to why there was no appearance by or for either side. (07/09/2019 Minute Order.)

On July 26, 2019, Plaintiff filed the instant motion to vacate dismissal.

ANALYSIS:

A. Legal Standard

Code of Civil Procedure section 473(b) provides, in relevant part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall 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).)

The court has broad discretion to vacate the entry of default, default judgment or a dismissal, but that discretion can be exercised only if the defendant establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than 6 months after the entry of default and must be made within a “reasonable time.”

Code of Civil Procedure section 473(b) provides that when an application for relief is made no more than six months after entry of dismissal and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall set aside a dismissal entered against the attorney’s 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., § 473(b).) “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.”

An attorney is responsible for supervising the work of legal assistants. Therefore, an employee’s scheduling error that results in default or dismissal is the “fault” of the attorney for purposes of Code of Civil Procedure section 473(b), and relief is mandatory. (Hu v. Fang (2002) 104 Cal.4th 61, 64.) Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney’s mistake, inadvertence, or neglect be excusable. Relief must be granted even where the default or dismissal resulted from inexcusable neglect by defendant’s attorney. (Robert E. Weil, et al., California Practice Guide: Civil Procedure Before Trial ¶ 5:495 (2018).)

B. Discussion

Plaintiff moves for relief from the dismissal entered on July 9, 2019 on the grounds that “(a) this Motion is timely in that it is being brought with[in] the six-months of dismissal; (b) the declarations of counsel submitted herewith establish mistake, inadvertence, surprise, or neglect; (c) dismissal of this case with prejudice was improper.” (Notice of Motion, p. 2:1-3.)

Plaintiff explains that “as a result of an unfortunate, but inadvertent calendaring error, Plaintiff’s counsel did not file the JSR for nor attend the July 9, 2019 status conference.” (Motion, p. 1:12-14 [citing Hiraide Decl., ¶¶ 3-6; Headrick Decl., ¶¶2-4].) Plaintiff argues that the dismissal was result of his counsel’s mistake, inadvertence, surprise, or neglect. (Id. at p. 2:1-2.) Plaintiff explains that “the July 9[,] 2019 status conference and deadline to file the joint status conference report were inadvertently not entered into the firm’s calendaring system.” (Id. at pp. 2:27-3:2 [citing Hiraide Decl., ¶¶ 3-6; Wallace Decl., ¶ 3; Hendrick Decl., ¶¶2-4].) Plaintiff argues that “here, the calendaring error establishes the requisite attorney fault under §473(b) warranting relief from dismissal.” (Id. at p. 3:9-11.)

This motion is timely and within six months of when the dismissal was entered because dismissal was entered on July 9, 2019 and Plaintiff filed the instant motion on July 26, 2019. The Court finds that Plaintiff has sufficiently demonstrated that the dismissal was entered due to Plaintiff’s counsel’s excusable neglect, inadvertence, and mistake. The motion is accompanied by Plaintiff’s counsels’ sworn declarations attesting to their mistake, inadvertence, surprise, or neglect. (See Hiraide Decl., ¶¶ 3-5; Wallace Decl., ¶3; Hendrick Decl., ¶ 4.) Plaintiff’s motion to vacate the dismissal under Code of Civil Procedure section 473(b) is GRANTED.

The Court schedules a Status Conference for Oct. __, 2019. The parties are to file a Joint Status Conference Report 5 court days prior to the status conference hearing.