Case Number: KC065935 Hearing Date: February 17, 2015 Dept: J
Re: VK Major One, LLC v. Andrew Bourdelais, et al. (KC065935)

MOTION TO VACATE ORDER OF DISMISSAL PURSUANT TO CCP § 473

Moving Party: Plaintiff VK Major One, LLC

Respondent: No timely opposition filed

POS: Moving OK

In this action for breach of commercial lease agreement, Plaintiff VK Major One, LLC alleges that Defendants breached the lease by abandoning the premises before the lease term ended. The Complaint, filed on 4/11/13, asserts a single cause of action for breach of written contract.

Plaintiff VK Major one, LLC (“Plaintiff”) moves pursuant to CCP § 473 for an order vacating the order of dismissal that was entered in this case on December 3, 2014.

“[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.)

When the court grants relief from a dismissal, the court may impose a penalty up to $1,000 on the offending attorney or party.

PERTINENT CASE HISTORY:

Plaintiff commenced this action on April 11, 2013.

On July 7, 2014, Defendants Scoll Bourdelais and Linda Bourdelais filed a Notice of Stay of Proceedings after filing for bankruptcy protection.

On July 14, 2014, a Status Conference re: Bankruptcy Status was set for November 13, 2014.

On November 13, 2014, no appearances were made at the Status Conference re: Bankruptcy Status and the Status Conference was continued to December 3, 2014. An Order to Show Cause re: Sanctions/Dismissal was also set for December 3, 2014.

On December 3, 2014, no appearances were made and the case was dismissed pursuant to CCP § 575.2.

COUNSEL’S AFFIDVAIT OF FAULT:

Counsel for Plaintiff represents that since the filing of this case, counsel has diligently prosecuted this case and has appeared at five hearings over the last one and a half years, including various status conferences regarding Defendants’ three pending bankruptcy cases. Unfortunately, due to clerical errors at his office, counsel inadvertently failed to attend the November 13, 2014 Status Conference re: Bankruptcy Status, followed by the Order to Show Cause re: Sanctions/Dismissal set for December 3, 2014. This failure was due to the fact that his associate, who was assigned to the case, took an extended leave of absence beginning November 10, 2014. This absence led to a series of internal office calendaring errors and counsel was inadvertently not scheduled to appear at the November 14, 2014 hearing, as well as the Order to Show Cause hearing that immediately followed. (Motion, Gourijian Decl. ¶ 3.) Counsel further represents that the clerical scheduling errors were only discovered on December 10, 2014, when counsel received notice of the court’s dismissal of the case with prejudice pursuant to CCP § 575.2. (Id. at ¶ 4.)

It appears that the order of dismissal was entered as a result of clerical errors at counsel’s office and no fault of Plaintiff. Thus, the motion to set aside is granted. The court expects counsel for plaintiff to provide a current update of the status of the bankruptcies.