Defendants and Cross-Complainants Law Offices of Roger E. Naghash and Roger E. Naghash’s motion for order setting aside the dismissal of this action entered on 10/28/13 is denied.

Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” Code Civ. Proc. § 473(b) permits a court to grant two types of relief. Leader v. Health Industries of Am., Inc., 89 Cal. App. 4th 603, 615 (2001). A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. Id. at 615-616. A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. Id. at 616. Courts have limited the application of the mandatory provision to those dismissals procedurally equivalent to defaults. Gotschall v. Daley, 96 Cal. App. 4th 479, 483 (2002). Defaults are entered when a defendant fails to appear and under CCP § 473, relief is afforded where the failure to appear is the fault of counsel. Id. Similarly, a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion and relief is afforded where that failure to appear is the fault of counsel. Id. The mandatory relief provision is inapplicable to voluntary dismissals, dismissals for lapsing of the statute of limitations, failure to serve a complaint in a timely manner, failure to prosecute, and failure to file an amended complaint after a demurrer has been sustained with leave to amend. Nacimiento Regional Water Management Advisory Comm. v. Monterey County Water Resources Agency, 122 Cal. App. 4th 961, 967 (2004).

Here, Roger Naghash, whether for himself or as counsel for the Law Offices of Roger Naghash, has conceded that he knew of the OSC re dismissal but, believing there was no grounds for it, did not believe he needed to appear at the OSC. Mr. Naghash’s decision not to appear at the OSC was not excusable neglect but a deliberate choice. As a party, then, Roger Naghash has not met the criteria for discretionary relief under section 473(b).

Mr. Naghash has not submitted an attorney affidavit of fault to trigger the mandatory provisions of section 473(b) on behalf of his client, the Law Offices of Roger E. Naghash. In any event, where counsel makes a deliberate, strategic choice, he may not obtain relief from the consequences by asserting attorney error under Code Civ. Proc. § 473(b). Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal. App. 4th 1058, 1073 (finding attorney’s deliberate choice not to respond to discovery or motion for terminating sanctions not to be a mistake giving rise to relief).

Moving party to give notice.