Case Number: BC484072 Hearing Date: June 24, 2014 Dept: 34

Moving Party: Plaintiff Jimmy Spencer (“plaintiff”)

Resp. Party: None

Plaintiff’s motion to set aside dismissal is GRANTED.

BACKGROUND:

Defendant 160 N. Mansfield commenced an action, case number 11U12869, on September 23, 2011, against plaintiff for: (1) forcible entry; (2) temporary and permanent injunctive relief; and (3) actual and punitive damages. Defendant alleges its individual members purchased the subject property on March 25, 2011, and transferred title to defendant in September 2011. (Compl., ¶ 7.) The property consists of a residential duplex and a garage with an attached studio apartment. (Id., ¶ 9.) When defendant purchased the property, plaintiff was residing in the premises after the expiration of an unpermitted lease agreement between plaintiff and the property’s previous owner. (Id., ¶ 10.) Defendant neither assumed the lease or entered into a new lease with defendant. (Ibid.) Defendant learned that plaintiff’s tenancy was never authorized and was illegal, and defendant informed plaintiff of the same and the parties agreed plaintiff would vacate. (Id., ¶ 11.) In June 2011, plaintiff vacated the premises and restored possession to plaintiff. (Id., ¶ 13.) Defendant immediately changed the locks and demolished the interior of the premises within the applicable law. (Id., ¶ 15.) In July 2011, the Los Angeles Housing Department contacted defendant and ordered defendant to demolish and remove the studio apartment from the garage structure. (Id., ¶ 16.) On August 12, 2011, plaintiff physically broke the lock on the door and entered the premises. (Id., ¶ 20.) Plaintiff remains, without defendant’s consent, in possession of the premises. (Id., ¶ 23.)

Plaintiff commenced an action on May 4, 2012, case number BC484072, against defendant for: (1) violation of Los Angeles Municipal Code section 152; (2) failure to pay relocation fee; (3) violation of Civil Code section 1940.2; (4) retroactive rent abatement; (5) maintenance of nuisance; (6) trespass; (7) trespass to chattels; (8) invasion of privacy; (9) violation of Civil Code section 789.3; (10) intentional infliction of emotional distress; and (11) negligent infliction of emotional distress. Plaintiff alleges that defendant is the owner of the subject property. (Compl., ¶ 7.) On February 26, 2010, plaintiff entered into a written lease agreement with the Property’s former owner for a studio apartment located on the property. (Id., ¶ 9.) Plaintiff alleges that he signed an estoppel certificate in March 2011 to carry over his lease agreement from the previous owner of the property to defendant 160 Mansfield. (Id., ¶ 12.) Plaintiff alleges that, after taking possession of the property, defendant conducted substantial renovations in violation of the city’s Tenant Habitability Program. (Id., ¶¶ 13, 15-20.)

On August 29, 2012, the Court found that the two actions are related cases. (See Minute Order dated 8/29/2012.)

A court trial was held on 5/1/14. Plaintiff did not appear. At the hearing on that date, defendant’s counsel informed the Court that the case had settled and stipulated to a dismissal pursuant to CCP section 664.6. (See Minute Order, 5/1/14.) The Court therefore ordered the case dismissed and retained jurisdiction pursuant to section 664.6. (Ibid.)

ANALYSIS:
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].)

Where the mandatory provision does not apply, “[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Plaintiff filed the instant motion less than a month after the dismissal. The motion is therefore timely.

Plaintiff argues that the dismissal was due to his counsel’s inadvertence or mistake. Plaintiff’s counsel declares that she forgot to docket the dates for the final status conference and trial. (Kim Decl., ¶ 4.) She declares that the parties reached a settlement on the principal terms at the continued MSC on 4/23/14. (Id., ¶ 5.) The parties had a brief disagreement as to whether the settlement would include a prohibition of disclosure of any information regarding the unlawful detainer case, but plaintiff eventually agreed to accept $500.00 less than the original settlement amount in consideration of adding this term. (Ibid.) Counsel declares that she did not appear at the 4/24/14 FSC due to her own error. (Id., ¶ 6.) The following day, defense counsel expressed an intention to file a notice of settlement. (Ibid.) Counsel declares that between the last week of April and the first two weeks of May she was engaged in jury trials and only discovered on 5/13/14 that she forgot to docket the FSC and trial date. (Id., ¶¶ 7-8.)

Plaintiff’s evidence is sufficient to establish that the dismissal was caused by plaintiff’s counsel’s inadvertence or mistake. The declaration establishes that counsel failed to appear at the 5/1/14 hearing due to her mistake.

The Court also notes that defendant has not filed an opposition to this motion and hence, presumably, does not oppose the Court setting aside the dismissal of this action.

Plaintiff’s motion to set aside the dismissal is GRANTED.

The Court sets a final status conference for _____________ and a court trial in this matter for ______________________.