Date: 06-24-2020

Case Style:

Case Number: B296516

Judge: Stratton, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Steve Mikhov, Amy Morse, Michael H. Rosenstein, and Cynthia Tobisman

Defendant's Attorney: Ryan K. Marden

Description: Plaintiff Wendy Y. Hernandez (Hernandez) settled her civil
action as the prevailing party. After the settlement was put on
the record, the trial court set a hearing three months out on an
order to show cause (OSC) re dismissal, and ordered any motion
for attorney fees to be filed and heard before the OSC date. Due
to mistake, inadvertence, or neglect by counsel, Hernandez filed
no motion for fees by the court-ordered deadline. The trial court
refused to extend the deadline for the motion and, one month
later, dismissed the action pursuant to the settlement agreement.
Four months later, Hernandez’s counsel filed a motion to
set aside the dismissal pursuant to the mandatory relief
provision of Code of Civil Procedure1 section 473, subdivision (b).
The trial court denied the motion, stating counsel’s mistake or
inadvertence in not filing a timely attorney fees motion did not
cause the dismissal of the action. Rather, counsel’s error simply
caused plaintiff to lose the opportunity to file her fee motion.
We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Background Information
On July 13, 2017, Hernandez filed a civil complaint against
FCA US LLC and Cerritos Dodge, Inc. (collectively defendants)
for violations of the Song-Beverly Act (§ 1793.2) and negligent
repair of her vehicle.
1 All further statutory references are to the Code of Civil
Procedure, unless otherwise stated.
3
Hernandez was represented by Knight Law Group (Knight)
and the Law Offices of Michael H. Rosenstein (Rosenstein).
Knight was to draft motions and handle other filings on behalf of
Hernandez, while Rosenstein was to appear in court for trial and
other hearings. Knight’s usual practice with co-counsel was to
rely upon co-counsel to “advise . . . what happened at the
hearings and what deadlines have been set—most importantly,
so that Knight can draft all motions and other pleadings that are
necessary pursuant to the trial court’s orders and deadlines.”
B. Parties’ Settlement and Court’s Orders
On May 14, 2018, the first day of trial, the parties advised
the court that they had settled the case. Rosenstein read the
terms of the settlement into the record. Among other things, the
settlement deemed Hernandez the prevailing party for purposes
of filing a motion for attorney fees and costs. It provided that
attorney fees and costs would be determined by agreement of the
parties or by noticed motion. It also provided that Hernandez
would “file a request for dismissal of all causes of action against
all defendants with prejudice upon payment of the entire
settlement amount as well as any attorney’s fees and costs.” The
court confirmed with all parties that they understood the terms
of the settlement and were in agreement.
The court followed up: “The only question for the court,
then, is if there’s an attorney’s fees motion, I want to get a
deadline. I want to set an OSC re dismissal and any attorney’s
fees motion, if you don’t stipulate or agree to it, it would have to
be heard prior to that time.” The court noted it will “put out [the]
OSC re dismissal . . . 90 days” and told counsel it would “give you
time to agree on attorney’s fees or you’ll be filing your motion – or
your opposition.” The court set the “Order to Show Cause re
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Dismissal per Settlement” for August 16, 2018; the court
repeated again that any fee “motion [is] to be heard prior to that
time.”2
Later that day, Rosenstein sent Knight an email with the
terms of settlement. The relevant portions of that email state:
“The case settled for $77,500.00. The terms of the settlement
were put on the record. Attorneys’ fees and costs by motion.
Plaintiff is the prevailing party for purposes of our fee motion. . . .
Plaintiff will file a request for dismissal of all causes of action
against all Defendants upon full payment of the settlement
amount as well as attorneys’ fees and costs. [¶] The Judge would
not permit an OSC set further out. This was the latest date he
was willing to provide.” The email then set out the date and time
of the upcoming hearing (August 16, 2018 at 8:30 a.m.) and the
type of hearing (OSC re dismissal), and specified that notice was
waived.
C. OSC re Dismissal and Hernandez’s Ex Parte Application
On August 16, 2018, Knight appeared in court on behalf of
Hernandez. The court indicated the deadline for the motion for
attorney fees “has passed and is not continued.”3
The court
continued the OSC re dismissal to September 18, 2018.
On September 18, 2018, Hernandez filed an ex parte
application for relief from the “untimely filing and hearing of her
2 The minute order from the May 14, 2018 hearing also
specifies: “All motions are to be scheduled and heard prior to the
above-mentioned hearing date.”
3 The record does not include a reporter’s transcript of the
August 16, 2018 hearing; we were, however, provided with the
minute order.
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Motion for Attorney Fees, [or] in the alternative, for an extension
of time to file and hear [her] Motion for Attorney Fees.”
Hernandez argued she was entitled to relief under rule 3.1702(d)
of the California Rules of Court and the discretionary relief
provision of section 473, subdivision (b), because her counsel
Rosenstein failed to notify co-counsel Knight of the court’s
deadline to file the motion for attorney fees. Hernandez argued
that without relief, she “may be barred from recovering fees in
this action despite the agreed-upon terms of the parties’
settlement agreement.”
The court held a combined hearing on Hernandez’s ex parte
request and the OSC re dismissal. It first addressed Hernandez’s
ex parte request. The court discussed what constitutes
“excusable neglect” warranting relief under section 473,
subdivision (b), and stated a court may grant relief “when a
mistake is excusable and the party seeking relief has been
diligent.” The court found there was neither excusable neglect by
Hernandez’s counsel nor was counsel diligent in bringing the ex
parte application. The court reminded Knight it had appeared on
behalf of Hernandez on August 16, 2018, and knew then of the
court’s refusal to continue the deadline for the fee motion.
“Today is now 33 days later. I get an ex parte on today’s date.
You didn’t come back the day after August 16th . . . or the
weekend afterwards . . . . So I don’t see any diligence here. This
has been now more than a month, and you are waiting until the
day of the OSC re dismissal, which is obviously today.”
The court further explained: “I’m not exercising my
discretion [under section 473, subdivision (b)] because I don’t
think, in this case, that the neglect either was excusable or that
there was diligence. I would have – I may well have thought
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differently had you come back in right after August 16th and
said, you know, ‘Oops, we made a mistake, and we are asking for
ex parte relief.’ It’s – this is 33 days later; we are now on
September 18th, not August 16th. [¶] Today is the OSC re
dismissal. To give the court the ex parte on the day that you
know the case is going to be dismissed, I don’t think that’s
diligence.” The court denied Hernandez’s ex parte application.
The court then addressed the OSC. It found no cause
exists “as to why the case should not be dismissed” and ordered
the action dismissed.
D. Hernandez’s Motion to Set Aside Dismissal
On January 25, 2019, Hernandez filed a motion to set aside
dismissal under the mandatory relief provision of section 473,
subdivision (b), on the ground that counsel’s inadvertence,
mistake, or neglect caused her action to be dismissed. She
contended she met the requirements for mandatory relief because
her motion to set aside was timely filed, in proper form, and
accompanied by an attorney’s sworn affidavit of fault. She
argued the issue of attorney fees was the only outstanding issue
to be resolved as part of the settlement and Rosenstein’s failure
to inform Knight about the court’s deadline for the fee motion
“was the direct cause” of Hernandez’s failure to timely file and set
a fee motion before the August 16, 2018 deadline, which “in turn,
resulted in the court dismissing the case.”
On February 25, 2019, the court engaged in lengthy backand-forth discussion and argument with Hernandez’s counsel,
who argued “it was the failure to file the attorneys’ fees motion
that was the precipitating event that caused dismissal.” The
court disagreed and denied the motion.
7
The trial court found: “This case was not dismissed
because of the mistake or neglect of counsel. The case was
dismissed because the parties had reached a settlement and
[Hernandez] has been paid in full under her settlement.” The
court further found: “It appears that the failure to file the
attorney’s fee motion was caused by counsel’s mistake or neglect.”
Further, “vacating the dismissal would be a futile act” because
“even if the Court were to grant the motion to vacate the
dismissal, [Hernandez’s] motion for attorneys fees would still be
untimely.”
The court commented: “[Section] 473(b) is designed to
protect an innocent party, normally a plaintiff . . . from having
his or her case dismissed because the attorney goofed, to put it in
non-legal terms.” The court continued: “[Section] 473(b) doesn’t
save an attorney or an attorneys’ fees motion because of an
attorney’s goof.”
This appeal followed.
DISCUSSION
A. Applicable Law
Section 473, subdivision (b) provides two separate
provisions for relief from default or dismissal. (Jackson v. Kaiser
Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173
(Jackson).) “One affords discretionary relief, and the other makes
relief mandatory.” (Ibid.) The mandatory relief provision acts as
a “narrow exception to the discretionary relief provision for
default judgments and dismissals.” (Zamora v. Clayborn
Contracting Group (2002) 28 Cal.4th 249, 257.) The appeal
before us arises solely under the mandatory relief provision of
section 473, subdivision (b), as that was the basis upon which
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Hernandez requested the court set aside its September 18, 2018
dismissal in the underlying action.
Section 473, subdivision (b)’s mandatory relief provision
provides, in pertinent part: “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.” (§ 473, subd. (b).)
By its terms, the mandatory provision applies when
dismissal is caused by an attorney’s mistake, inadvertence,
surprise, or neglect—whether or not excusable. (Jackson, supra,
32 Cal.App.5th at p. 174.) “ ‘[I]f the prerequisites for the
application of the mandatory provision of section 473, subdivision
(b) exist, the trial court does not have discretion to refuse relief.’ ”
(Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 484 (Gee)
[citing Leader v. Health Industries of America, Inc. (2001)
89 Cal.App.4th 603, 612 (Leader)].)
B. Standard of Review
Where, as here, applicability of the mandatory relief
provision does not turn on disputed facts, but rather, presents a
pure question of law, it is subject to de novo review. (Leader,
supra, 89 Cal.App.4th at p. 612.)
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C. Analysis
Let us go through the language of section 473(b) and
ascertain whether Hernandez has satisfied the requirements of
the statute.
Procedurally, an application for mandatory relief must be
made “no more than six months after entry of judgment.” (§ 473,
subd. (b).) Here, Hernandez filed her motion to set aside the
dismissal on January 25, 2019—within four months of the court’s
September 18, 2018 order dismissing the case.
Next, the application must be in “proper form.” (§ 473,
subd. (b).) Legislature intended the phrase “in proper form” to
encompass the mandate that the application for relief under
section 473, subdivision (b) be accompanied by the pleading
proposed to be filed therein. (Carmel, Ltd. v. Tavoussi (2009)
175 Cal.App.4th 393, 401.) Here, Hernandez’s proposed motion
for attorney fees was attached as an exhibit to a declaration filed
in support of Hernandez’s motion to set aside the dismissal.
The application must include “an attorney’s sworn affidavit
attesting to his or her mistake, inadvertence, surprise, or
neglect.” (§ 473, subd. (b).) The motion included the declaration
of an attorney from Rosenstein, who declared that his failure to
inform Knight about the court’s deadline for the attorney fee
motion was “the direct cause of [Hernandez’s] failure to file a
motion for attorney’s fees prior to the August 16, 2018 OSC
hearing. This, in turn, resulted in the Court dismissing the case
on September 18, 2018 because attorney’s fees were the only
outstanding issue to be resolved.”
So far, we have three for three. And now, the final
requirement. The trial court is required to vacate the dismissal
“unless the court finds that the default or dismissal was not in
10
fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect.” (§473, subd. (b), italics added.)
The trial court here made explicit findings as to causation.
It noted: “This case was not dismissed because of the mistake or
neglect of counsel. The case was dismissed because the parties
had reached a settlement and [Hernandez] has been paid in full
under her settlement.” The court found “the failure to file the
attorney’s fee motion was caused by counsel’s mistake or neglect.”
Hernandez disagrees and repeats the same argument on
appeal—that the failure to file the attorney fees motion caused
the dismissal of the case.
Based on the undisputed facts recited above, we agree with
the trial court that, as a matter of law, dismissal was not caused
by counsel’s error. (Huh v. Wang (2007) 158 Cal.App.4th
1406, 1414; Solv-All v. Superior Court (2005) 131 Cal.App.4th
1003, 1010.) We hold that application of section 473, subdivision
(b)’s mandatory provision, as requested by Hernandez, is far
beyond the limited confines of the statute as intended by the
Legislature. “ ‘ “Although the statute on its face affords relief
from unspecified ‘dismissal’ caused by attorney neglect, our
courts have, through judicial construction, prevented it from
being used indiscriminately by plaintiffs’ attorneys as a ‘perfect
escape hatch’ [citation] to undo dismissals of civil cases.” ’ ”
(Leader, supra, 89 Cal.App.4th at p. 618.) “ ‘ “There is no
evidence the amendment was intended to be a catch-all remedy
for every case of poor judgment on the part of counsel which
results in a dismissal.” ’ ” (Ibid.; see also id. at p. 620 [discussion
on legislative intent as to § 473, subd. (b)].) Courts have
interpreted the mandatory relief provision concerning dismissals
“so as to harmonize its stated goal (giving dismissed plaintiffs
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comparable relief to that afforded to defaulted defendants) with
the statutes which authorize dismissal.” (Leader, at p. 618; see
Gee, supra, 6 Cal.App.5th at p. 484 [generally, the applicability of
the mandatory provision is limited to those dismissals
procedurally equivalent to defaults].)
Counsel’s error did not deprive Hernandez of her “ ‘day in
court.’ ” (Leader, supra, 89 Cal.App.4th at p. 621 [“In any event,
the ‘day in court’ envisioned by [prior court] decisions is not a
guaranteed trial on the merits, but merely the opportunity to
appear and present evidence and argument in opposition to the
motion to dismiss”].) Hernandez had her day in court and
consequently settled her case as the prevailing party. What she
lost, for lack of a better word, was the opportunity to file and
litigate her motion for attorney fees and costs before the court
dismissed her settled case.
At oral argument, counsel for Hernandez argued the trial
court abused its discretion when it foreclosed Hernandez from
receiving attorney fees, which was part of her agreed-upon
settlement. We find no abuse of discretion by the trial court in
using its inherent supervisory powers to manage proceedings
before it and to set deadlines to ensure the timely handling of
cases assigned to it. “A court has inherent power to exercise
reasonable control over all proceedings connected with the
litigation before it.” (Mowrer v. Superior Court (1969)
3 Cal.App.3d 223, 230.) In addition to its inherent power, the
Legislature “has granted the power to every court to provide for
the orderly conduct of proceedings before it.” (Ibid.)
“ ‘California’s Constitution provides the courts . . . with inherent
powers to control judicial proceedings. [Citations.] To the same
effect, Code of Civil Procedure section 128, subdivision (a)(8)
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authorizes every court “[t]o amend and control its process and
orders so as to make them conform to law and justice.” This
provision is consistent with and codifies the courts’ traditional
and inherent judicial power to do whatever is necessary and
appropriate, in the absence of controlling legislation, to ensure
the prompt, fair, and orderly administration of justice.’ ” (Kinney
v. Clark (2017) 12 Cal.App.5th 724, 740.)
Here, after the parties reached a settlement, the court used
its inherent supervisory power to set the hearing on the OSC re
dismissal 90 days out, providing counsel plenty of time to file the
attorney fees motion, and allowing the trial court to ensure the
timely and speedy resolution of the proceeding before it. Further,
given the conflicting information in Rosenstein’s May 14, 2018
email to Knight regarding how the case would be dismissed,
4 this
inconsistency should have alerted counsel that something was
miscommunicated or misconstrued from the court’s ruling—
enough to have caused either counsel to check the case’s online
docket and/or the court’s minute order.
Our reading of the mandatory provision of section 473,
subdivision (b) and the long line of cases applying this section
compels us not to endorse an overly expansive interpretation of
the statute. Counsel missed the court-ordered deadline to move
for attorney fees. Section 473 provides no relief for such error.
4 Rosenstein specified in his email both that (1) the judge
would not permit an OSC re dismissal set later than August 16,
2018, and that (2) Hernandez “will file a request for dismissal of
all causes of action against all Defendants upon full payment of
the settlement amount as well as attorneys’ fees and costs.”

Outcome: The order is affirmed. Respondents FCA US LLC and
Cerritos Dodge, Inc. are awarded costs.

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Defendant's Experts:

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