Arthur Borner v. Mitchell Williams
Case No.: TC028648

Matter on calendar for: motion to vacate dismissal Tentative ruling:

I. Background

This action arises out of a home improvement contract. Plaintiff Arthur Borner entered into a written agreement for home remodeling with Defendant and Cross-Complainant Mitchell Williams dba Solomon’s Temple Construction on August 12, 2014. The original contract price was $276,500. The dispute is over the amount of work completed, the quality of the work, and what additional work was agreed to. As to the additional work, there is an unsigned Change Order the parties have asked Court to adjudicate. The change order is dated June 17, 2016; Williams claims he is owed an additional $24,080.90 for work under that order. Borner alleges that Williams failed to perform, and that the change orders were duplicative of Williams’s obligations under the original contract. Williams alleges he has been paid only $252,880.92 under the original contract.

The parties entered into a stipulation in which they agreed to a multistep process to resolve their claims. They agreed that a third-party expert would inspect the property and determine its state. The expert would determine the work remaining to be completed under the original contract agreement, the cost to complete any remaining work per the contract, the cost to repair any damage caused by improper construction, and the cost paid to any third-parties to perform work that Williams was contracted to perform.

On December 3, 2018, the Court dismissed the case pursuant to Code of Civil Procedure § 664.6.

Borner now moves to set aside the dismissal based on attorney mistake. The motion is unopposed.

For the reasons set forth below, the Court grants the motion.

II. Standard California Code of Civil Procedure § 473(b) allows the court to relieve a party from judgment, dismissal, order, or other proceeding for that party’s mistake, inadvertence, surprise, or excusable neglect. Mistake of fact is when a person understands facts to be other than they are. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653.) Surprise denotes a condition or situation in which a party “is unexpectedly placed… without any default or negligence of his own… which ordinary prudence could not have guarded against.” (McGuire v. Drew (1890) 83 Cal. 225, 229.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 29 Cal.4th 249, 258.) [Citations omitted.

III. Analysis

Jim Farasatpour was appointed by the Court as a neutral third-party expert. He disseminated a draft report to the parties, with the caveat that it was a draft. (Exh. D, Decl. Farasatpour.) On December 3, 2018, the Court was informed by defense counsel that no final draft was forthcoming. This was inaccurate. Due to Borner’s health complications and Farastpour’s being dispatched to a hurricane zone,

January 15, 2019 Calendar Notes and Tentative Rulings

2

the final report was delayed. Farasatpour expects that he would be able to meet with Borner and complete his final report within 30 days. Because of scheduling error, Borner’s counsel was not available on December 3, 2018 to inform the Court that the draft report was not final. Counsel submits a declaration detailing his mistake.

The motion to set aside the dismissal is granted.

IV. Ruling

The motion to set aside the dismissal is granted.

The dismissals of the Complaint and Cross-Complaint are set aside.