Motion to Vacate Dismissal (Judge David Chaffee)


Motion to Vacate Dismissal

The Complaint alleges that Defendant owed money under contract for services but paid with a NSF check; the causes of action are in contract and for fraud.

2015

5/1???? Complaint filed

6/5???? Clerk gave notice of 10/1 CMC

10/1??? CMC continued at Plaintiff’s request

11/5??? At CMC, counsel stated intent to amend.? Court

continued the CMC to 12/3 and set OSC re dismissal on the same date.

11/6??? Plaintiff files 1st Amended Complaint

12/3??? Counsel at CMC stated all parties were served.

OSC was taken off calendar.? CMC continued to 1/6

2016

1/4???? Plaintiff filed POS on one defendant.

1/6???? Plaintiff dismissed one party and Court set OSC

re dismissal of all “unserved/non-appearing” parties for 2/2 and continued the CMC to the same date.? No Defendant has answered the complaint.

2/2???? When on one appeared the Court ordered the entire case dismissed. Clerk gave notice the same day.

5/12??? This motion was filed.

 

 

Counsel claims that failure to appear was due to calendar error.? He declares that all Defendants have been served and they have all “been defaulted” and the case is ready for entry of default judgment.? THIS IS UNTRUE.? The only proof of service filed was in January and it was only on Allied Roofing and Waterproofing.”? NO requests for entry of default were ever filed and there is no indication in the Court?s file of any attempted filing that was rejected.

 

In addition, Plaintiff’s attorney waited another five months after the dismissal before trying to set it aside.? The motion was filed over a year after the complaint was filed.

 

“Mandatory relief” can be denied if “the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”? The history of this action shows what appears to be deliberate delay in prosecuting the case.? In addition, the supporting declaration is perjured; no default have been taken.

 

Notice of motion doesn?t even state what is being sought, only an “order relieving Plaintiff from error of counsel in failing to appear” at the CMC/OSC.? The case wasn’t dismissed for failing to appear but for failing to show cause.? It still has not been shown.

 

 

Plaintiff’s motion for relief “from the error of counsel in failing to appear” at a CMC/OSC is denied.? The Court finds that failure to respond to the OSC was not the result of attorney mistake, inadvertence, surprise or neglect” but was part of a pattern of deliberate delay and failure to prosecute this case.? CCP ?473(b).

 

The case was filed over a year before this motion was filed.? It was dismissed on 2/2/16 for failure of Plaintiff’s attorney to show cause regarding dismissal of unserved/non-appearing parties; it was not dismissed merely for failure to appear at a CMC.

 

Mandatory relief depends on the credibility of counsel; where the affidavit of fault lacks credibility, the motion can be denied. Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 15.? Counsel declares that defaults of all defendants have been taken and the case is ready for default judgment.? This is a blatant misrepresentation; no requests for entry of default have been filed and only one proof of service on only one defendant was filed in over a year since the case was filed on 5/1/15.

 

Counsel waited another 5 months after the dismissal before seeking to set it aside, reinforcing the Court’s conclusion that there is a pattern of deliberate delay.