On 11/25/2013 LATOYA D JONES filed a Personal Injury - Motor Vehicle lawsuit against ANTHONY MENDOZA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM and DANIEL S. MURPHY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOWARD L. HALM
DANIEL S. MURPHY
JONES LATOYA D.
DOES 1 TO 20
11/25/2013: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
5/11/2015: Minute Order
5/26/2015: Minute Order
8/27/2015: Minute Order
9/23/2015: PROOF OF SERVICE SUMMONS
9/30/2015: Minute Order
11/20/2015: Minute Order
2/26/2016: Minute Order
11/28/2016: Minute Order
1/19/2017: SUBSTITUTION OF ATTORNEY
1/19/2017: Minute Order
6/20/2017: Minute Order
9/28/2017: Minute Order
11/21/2017: Minute Order
11/28/2017: Minute Order
11/28/2017: REQUEST FOR ENTRY OF DEFAULT
Proof-Service/Summons Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC528670 Hearing Date: November 14, 2019 Dept: 4A
Motion to Set Aside Dismissal
Having considered the moving, opposing, and supplemental moving papers, the Court rules as follows. No reply papers were filed.
On November 25, 2013, Plaintiff Latoya D. Jones filed a complaint against Defendant Anthony Mendoza (“Defendant”) alleging motor vehicle and general negligence for an automobile collision that occurred on November 23, 2011.
On March 8, 2018, Plaintiffs Jasai J. Youngblood and his guardian ad litem, Leon Youngblood, filed a first amended complaint against Defendant.
On March 18, 2019, the Court dismissed the complaint against Defendant in granting terminating sanctions against Plaintiff Jasai J. Youngblood for failing to abide by a September 26, 2018 Court order.
On September 17, 2019, Plaintiff Jasai J. Youngblood filed a motion to set aside the March 18, 2019 dismissal pursuant to California Code of Civil Procedure section 473, subdivision (b).
Plaintiff Jasai J. Youngblood (“Plaintiff”) asks the Court to set aside the March 18, 2019 dismissal on the ground that Plaintiff’s counsel was too busy to comply with the September 26, 2018 Court order.
California Code of Civil Procedure section 473, subdivision (b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . . was taken. . . .” Notwithstanding any other requirements of this section, the court shall, whenever 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, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. . . .”
Relief is mandatory when an attorney files the required affidavit, even if the attorney's neglect was inexcusable. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 401 (setting aside a default entered when the attorney failed to file an answer).) No reason need be given for the existence of one of these circumstances and attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.)
“The court shall, whenever relief is granted based on attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).)
Plaintiff’s counsel failed to serve outstanding discovery in compliance with the September 26, 2018 order due to Plaintiff’s counsel’s busy calendar. (Marks Decl., ¶¶ 37-38.)
Defendant argues that California Code of Civil Procedure section 473, subdivision (b) does not apply here because the dismissal at bar is not the procedural equivalent of a default. Defendant cites English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 for this proposition. The Court agrees that California Code of Civil Procedure section 473, subdivision (b) only insofar as they are the procedural equivalent of a default. Such a situation arose in the context of a dismissal entered as a terminating sanction for discovery abuse in Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 725-726.
The Rodriguez court grounded its holding on statutory language directing that, when confronted with the proper affidavit of attorney fault, “the court shall, . . . , vacate any . . . resulting . . . dismissal . . . , unless the court finds that the . . . dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Id. at p. 725 (emphasis added).) Faced with this all-encompassing language, the Rodriguez court found that a sanctions dismissal could be set aside under section 473(b) given the proper showing. In rejoinder to an argument urging a more narrow construction, the appellate court relied on authority from the Second District Court of Appeal in Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 736, to hold that “an order of dismissal entered for failure to comply with an order compelling answers to interrogatories is the practical equivalent of a default judgment.” (Rodriguez v. Brill, supra, 234 Cal.App.4th at p. 725.) Because such a dismissal is tantamount to a default judgment, it should be treated the same way under section 473(b).
Defendant argues that the dismissal was proper and that Plaintiff did not suffer the ultimate dismissal sanction for a first transgression or violation of a discovery rule. (Motion, pp. 7:24-9:14.) The Court does not find that the March 18, 2019 dismissal was improper. Rather, the Court is deeming Plaintiff’s counsel’s declaration of fault as sufficient to set aside the properly entered March 18, 2019 dismissal. Further, Defendant does not cite any instances of repeated discovery abuse showing the dismissal is such that Plaintiff has a history of acts in obstructing discovery, failing to honor stipulations, and defying court orders such as was present in Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481, 491 (disapproved of on other grounds).)
Defendant contends that the Court should deny the motion for relief because it was not filed until the last day of the six-month period for filing a section 473(b) motion. (Opposition, p. 10:5-10:19.) The Court concludes that a party seeking mandatory relief under section 473(b) need not demonstrate diligence to secure relief. The statute clearly describes the Court’s obligation to grant mandatory relief based on an attorney’s declaration of attorney fault “whenever an application for relief is made no more than six months after entry of judgment.” (Code Civ. Proc. § 473, subd. (b).) Diligence need not be demonstrated to obtain relief based on an attorney’s declaration admitting fault so long as the motion is timely and in the proper form. (Ibid.; Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 862).
The Court finds Plaintiff’s counsel’s declaration of fault is sufficient. As such, relief from the March 18, 2019 dismissal is mandatory.
Plaintiff’s motion is GRANTED.
The Court sets aside the March 18, 2019 dismissal and set a trial setting conference for December 16, 2019 at 10:00 a.m.
Plaintiff is ordered to give notice of this ruling.