Superior Court of California
County of Los Angeles – West District
Beverly Hills Courthouse / Department 205
| MANE KARAPETIAN,
Plaintiff, v. MERIWETHER COMPANIES, LLC, et al.,
Defendants. |
Case No.: 22SMCV02272
Hearing Date: December 8, 2023 [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL
|
BACKGROUND
This is a slip and fall case. Plaintiff Mane Karapetian fell on a liquid spill at a bathroom located at the “Griffin Club Los Angeles”. Defendants Meriwether Companies LLC, Singerman Real Estate LLC, Derek Strader, Out-FitNRG, LLC and Out-FitNRG Inc. own and operate the club. As a result of the accident, Plaintiff alleges she sustained severe injuries including a broken nose, concussion as well as cervical and lumbar disc injuries.
This hearing is on Plaintiff’s motion to vacate an order of dismissal of her Complaint. Plaintiff’s complaint was dismissed because she failed to serve Defendants within 60 days of the filing of her complaint as required under Local Rule 7.7. Plaintiff argues that her motion to vacate should be granted under Code Civ. Proc. 473(b) due to its attorney’s neglect in believing that ongoing settlement negotiations with Defendants’ insurance carriers was sufficient cause for the Court to grant additional time to effect service. No opposition was filed as of the posting of this tentative ruling.
LEGAL STANDARD
Pursuant to Code Civ. Proc. §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed. Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code of Civ. Proc. § 473(b).)
Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Id.) The purpose of the attorney affidavit provision is to “relieve the innocent client of the burden of the attorney’s fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.) Under the mandatory relief provision, the court is required to grant relief if the attorney admits neglect, even if the neglect was inexcusable. (Metropolitan Service Corp. v. Casa de Palms Ltd. (1995) 31 Cal.App.4th 1481, 1487; Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
An application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)
“[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court[.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)
DISCUSSION
The Court first addresses whether mandatory relief is available for a motion to vacate an order of dismissal where a plaintiff fails to serve defendants within the statutory period. The mandatory relief provision of §473(b) refers to both “default judgment or dismissal”. The inclusion of “dismissal” by the Legislature was intended to “put plaintiffs whose cases are dismissed for failing to respond to a dismissal motion on the same footing with defendants who are defaulted for failing to respond to an action.” (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 175.).
However, although the language of the mandatory provision, on its face, affords relief from unspecified ‘dismissals’ caused by attorney neglect, “our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ to undo dismissals of civil cases.” (Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 967.)
Courts have construed the provision as reaching only dismissals that are “procedurally equivalent to a default.” (Jackson, 32 Cal.App.4th at 174.) Dismissals that are sufficiently distinct from a default, thereby falling outside the scope of the mandatory provision, include “dismissals for failure to prosecute, dismissals for failure to serve a complaint within three years, dismissals based on running of the statute of limitations and voluntary dismissals entered pursuant to settlement.” (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.)
This case was dismissed for failure to prosecute, and therefore mandatory relief is not available. (Graham, 30 Cal.App.4th at 1660 (no mandatory relief where counsel failed to prosecute the case because he assumed the case would settle).)
Discretionary relief is also not available because counsel has not shown his neglect was excusable. The failure to serve was based on a conscious decision not to serve Defendants, and not based on any mistake or neglect, whether excusable or not. (Sarukhanyan Decl. ¶¶ 5-6.)
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s motion to vacate order of dismissal under Code Civ. Proc. 473(b).
IT IS SO ORDERED.
DATED: December 8, 2023 ___________________________
Edward B. Moreton, Jr.
Judge of the Superior Court