CHARLES HENRY BIBBY ET AL VS CHAMPIONS LEAGUE INC ET AL

Tentative Rulings

Case Number: ****1796    Hearing Date: November 20, 2019    Dept: 24

Plaintiffs Charles Henry Bibby and Vernon Earl Monroe’s motion to vacate the dismissal entered on June 26, 2019 is GRANTED.

On November 2, 2017, Plaintiffs Charles Henry Bibby and Vernon Earl Monroe brought the instant breach of contract and fraud suit against Defendants Champions League Inc., Los Angeles Superstars Inc., Carl George, and John Askew.

On May 29, 2019, the Court held an OSC Re: Default. Plaintiffs failed to appear. The Court therefore set an OSC Re: Dismissal for Plaintiffs’ Failure to Appear and Prosecute for June 26, 2019. The clerk gave notice via minute order.

On June 26, 2019, Plaintiffs failed to appear at the OSC Re: Dismissal and the Court dismissed the suit.

On August 19, 2019, Plaintiffs filed a motion to vacate the dismissal. No opposition was filed.

Relief under section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorney’s sworn affidavit attesting to the attorney’s “mistake, inadvertence, surprise or neglect.” (CCP ; 473(b).) The attorney affidavit of fault must contain a “straight forward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.)

Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Ibid.) If mandatory relief is granted, the court must “direct the attorney to pay reasonable compensatory legal fees and costs” to the opposing counsel or parties. (CCP ; 473(b).)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (CCP ; 473(b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or “[g]rant other relief as is appropriate.” (CCP ; 473(c)(1)(A), (B), (C).)

A motion for relief under section 473(b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (CCP ; 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi hearing rather than serving it with moving papers].) 

Discussion

Here, Plaintiffs request relief from the dismissal on discretionary grounds. Plaintiffs argue good cause is shown because they did not receive notice of the OSC that led to the dismissal.

Counsel’s declaration indicates that they never received notice of the hearing, the hearing was therefore not reflected on their calendar, and there is no record of the clerk’s notice. (Das Decl., ¶ 3.)

The Court notes that a Certificate of Mailing is present which indicates that the clerk served the minute order to Plaintiffs’ counsel via mail. (See 6/26/2019 Cert. of Mailing.) Despite this, the Court will still grant discretionary relief, since no prejudice is apparent.

Accordingly, Plaintiffs’ motion is GRANTED.

Moving party is ordered to give notice.