Case Number: KC065585    Hearing Date: October 06, 2014    Dept: J

Re: Sheryl Elizabeth Lopez v/ Golden Empire Mortgage, Inc., et al. (KC065585)

MOTION TO SET ASIDE DISMISSAL

Moving Party: Plaintiff Sheryl Elizabeth Lopez

Respondents: Defendants The Bank of New York Mellon, Bank of America, N.A., CWalt, Inc., Mortgage Electronic Registration Systems, Inc. and Recontrust Company, N.A.

POS: Moving papers filed just 11 court days prior to the hearing in violation of CCP § 1005(b); Opposing OK

Plaintiff commenced this wrongful foreclosure action on 2/6/13, asserting causes of action for:

1. Wrongful Foreclosure by Stranger
2. Cancellation of Instruments
3. Violation of CC §§ 2934a(a)(4)(e) and 2924F(b)(1)
4. Fraud – Intentional
5. Fraud – Fraudulent Concealment
6. Negligence
7. Violation of RICO
8. Violation of RESPA
9. Violation of Helping Families Save Their Homes Act of 2009
10. Violation of Fin C § 50505
11. Violation of Fair Debt Collection Practices Act
12. Violation of UCL
13. Breach of Contract
14. Promissory Estoppel
15. Accounting
16. Equitable and Implied Indemnity
17. Declaratory Relief

On 8/14/13, Defendants The Bank of New York Mellon, Bank of America, N.A., CWalt, Inc., Mortgage Electronic Registration Systems, Inc. and Recontrust Company, N.A.’s (collectively “Demurring Defendants”) demurrer to the Complaint was sustained. Counsel for Plaintiff was granted leave to file a First Amended Complaint by 8/26/13.

On 11/22/13, Demurring Defendants’ ex parte application to dismiss the action for failure to file the FAC was granted as to them.

On 11/25/13, the Case Management Conference was held. The court, after noting that the only remaining Defendants were Golden Empire Mortgage, Inc. and the DOE defendants, and that counsel for Plaintiff failed to appear, scheduled an OSC re: Dismissal for Failure to Prosecute for 1/9/14.

On 1/9/14, counsel for Plaintiff appeared and reported that he did not appear at the Case Management Conference on 11/25/13 due to the downsizing and relocating of his law firm. The court found excusable neglect and the OSC re: Dismissal was discharged. The court noted to Plaintiff’s counsel that the only remaining Defendants were Golden Empire Mortgage, Inc. and the DOE defendants. The Case Management Conference was continued to 1/23/14.

On 1/23/14, the Case Management Conference was held. The court noted that a First Amended Complaint was still not filed as to the remaining Defendant, Golden Empire Mortgage, Inc. Counsel for Plaintiff reported that he was attempting to negotiate a loan modification and made an oral motion to extend the time for filing a First Amended Complaint, but that the request was denied. The Case Management Conference was continued and an OSC re: Dismissal for Failure to Prosecute was set for 2/13/14.

On 2/13/14, the OSC re: Dismissal was heard. There were no appearances by Plaintiff and/or Plaintiff’s counsel. The court determined that Plaintiff had abandoned the case and ordered the case dismissed with prejudice pursuant to CCP § 575.2. Notice of the dismissal was mailed by the clerk to counsel for Plaintiff that day.

Plaintiff Sheryl Elizabeth Lopez (“Plaintiff”) now moves for an order setting aside the dismissal pursuant to CCP § 473(b) on 3/14/14. Plaintiff contends that the court must set aside the dismissal order because it was entered as a result of Plaintiff’s former attorney’s mistake, inadvertence, surprise or excusable neglect.

MOTION BASED ON ATTORNEY FAULT:

“[W]henever 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, [the court shall] vacate any (1) resulting default entered by the clerk … or (2) resulting default judgment or dismissal entered against his or her client …” (CCP § 473.) The purpose 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.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The only limitation is that the court may deny relief if it finds the default or dismissal “was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The trial court may also deny the motion if it finds that the attorney’s declaration of fault is not credible. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.)

Relief is mandatory only from those dismissals which are the “procedural equivalent of a default”; i.e., those which deprive plaintiffs of their day in court. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.) CCP § 473(b) was never intended to be a “catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.” (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483–484.) Thus, the mandatory provision is inapplicable to a dismissal for delay in service of summons; AFTER A DEMURRER IS SUSTAINED WITH LEAVE TO AMEND; based on lapse of the statute of limitations; or for discovery violations. (Id. at 483–484.)

Recent cases hold that the provision for mandatory relief does not apply absent an actual default, default judgment or dismissal since CCP § 473(b) refers only to “defaults” and “dismissals.” On this basis, mandatory relief has been held inapplicable to: a judgment entered after defendants failed to appear at trial (Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321); a judgment entered after the responding party failed to oppose a summary judgment motion (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148–149); and an order enforcing a settlement following a party’s untimely opposition to a motion to enforce (Hossain v. Hossain (2007) 157 Cal.App.4th 454, 459).

FEBRUARY 13, 2014 DISMISSAL OF THE ACTION:

On February 13, 2014, the entire case was dismissed with prejudice pursuant to CCP § 575.2. This motion, however, was filed on September 19, 2014, more than six months after the order was entered. Thus, the motion is untimely. While Plaintiff attempts to seek relief from 3/14/14, the date the Demurring Defendants filed and served the Notice of Entree of Judgment or Order, the clerk served notice of the dismissal upon counsel for Plaintiff on February 13, 2014. The court finds the assertion of Francisco J. Aldana that he did not receive notice prior to March 14, 2014 not to be credible based upon the totality of his conduct in representing Plaintiff.

Further, the relief is not mandatory since the dismissal entered was not the “procedural equivalent of a default.” The court dismissed this action after Plaintiff repeatedly failed to file an amended complaint, and after setting, discharging, resetting and continuing the OSC re: Dismissal for Failure to Prosecute. In addition, the Declaration of Francisco J. Aldana, submitted in support of the motion, fails to demonstrate his mistake, inadvertence, surprise or neglect that resulted in the dismissal, i.e., counsel does not explain why he failed to appear at the February 13, 2014 hearing, or why he failed to ever file an amended complaint.

In fact, paragraph 5 of Mr. Aldana’s declaration states that he was negotiating with “Plaintiff’s legal staff” about an “extension of time” to “file a responsive pleading.” Apparently, Mr. Aldana has forgotten that he in fact represented the plaintiff, not the defendant, and that there was no operative pleading to respond to because HE never filed an amended complaint. Based on the procedural history of this case, discretionary relief is not warranted. Accordingly, the motion is denied.

NOVEMBER 22, 2013 DISMISSAL:

To the extent, the motion is also attempting to set aside the dismissal against the Demurring Defendants on November, 22, 2013, the motion is untimely. This motion was not filed until September 19, 2014, more than six months after the entry of the order.

Further, even if the motion was timely, the relief is not mandatory since the dismissals entered were not the “procedural equivalent of a default.” The court dismissed the Demurring Defendants after Plaintiff failed to timely file an amended complaint; and after Defendants moved for dismissal pursuant to CCP § 581(f)(2). (Opposition, Exhs. 4-6.) At that hearing, counsel for Plaintiff appeared and opposed the motion. (Ibid.) Yet, no timely motion for relief was brought.

Again, the Declaration of Francisco J. Aldana, submitted in support of the motion, fails to demonstrate his mistake, inadvertence, surprise or neglect that resulted in the dismissal, i.e., counsel fails to demonstrate why he did not amend the Complaint after the demurrer was sustained with leave to amend. Again, based on the procedural history of this case, discretionary relief is not warranted. Accordingly, the motion is denied.