Case Number: BC659260 Hearing Date: November 07, 2019 Dept: 24

Plaintiff Uknighted Clothing LLC and Laurie Lund’s motion to set aside dismissal is GRANTED.

On April 26, 2017, Plaintiff Uknighted Clothing LLC and Laurie Lund (“Plaintiffs”) filed the instant breach of contract/fraud suit against Defendants Global Apparel LLC and Simon Setton (“Defendants”). The operative Complaint alleges three causes of action for breach of contract, fraud and conversion.

On July 10, 2019, the Court dismissed the suit because Plaintiffs’ counsel failed to appear at an OSC Re: Dismissal for entry of default/default judgment.

On October 7, 2019, Plaintiffs filed the instant motion to set aside the dismissal. No opposition was filed.

Legal Standard

Relief under section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP § 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.)

Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP § 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP § 473(c)(1)(A), (B), (C).)

Discussion

Here, Plaintiffs demonstrate that mandatory relief is required. Counsel provides an affidavit of fault. (See Benincasa Decl.) He states that on July 10, 2019, he was scheduled to appear in this action by Courtcall at 8:30 a.m. (Id. ¶ 3.) He explains that he became distracted by other cases and did not notice his alarm to make the Courtcall until later in the morning. (Id. ¶ 4-5.) He immediately called, but was too late as the case was already dismissed. (Id. ¶ 6.) Based on these representations, relief is mandatory.

Further, Defendant has not appeared in the case. From this, there appears to be no prejudice (or fees/costs) to Defendants stemming from this dismissal.

Accordingly, Plaintiffs’ motion is GRANTED.