Opinion
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of Los Angeles County, No. BC417357, William F. Fahey, Judge.
Law Offices of Ramin R. Younessi and Ramin R. Younessi for Plaintiff and Appellant.
Jaenan J. Coe for Defendant and Respondent.
ZELON, J.
Hilario Rodriguez’s complaint for unlawful termination was dismissed by the trial court. After the initial ruling, he made an ex parte application to set aside the dismissal pursuant to section Code of Civil Procedure section 473. After the court denied the motion, it entered the dismissal. The court erred in doing so; we reverse.
Statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Rodriguez retained attorney Ramin R. Younessi and sued BDK USA, INC. (BDK) on July 7, 2009 for unlawful termination from employment following an industrial accident.
At the case management conference on November 5, 2009, Jeffrey Davis specially appeared for Rodriguez. The court ordered the case referred for mediation to be completed by March 3, 2010. The court also scheduled a post-mediation status conference for the same date and a final status conference for April 29, 2010.
Neither Rodriguez nor his counsel appeared at the March 3, 2010 post-mediation conference. Jaenan J. Coe, attorney for BDK, advised the court the parties had engaged in informal mediation, not court-ordered mediation. The court issued an order to show cause regarding sanctions for the failure of Rodriguez and his counsel to appear at the post-mediation status conference and set the hearing for April 8, 2010.
On April 6, 2010, attorney Younessi filed a motion to be relieved as Rodriguez’s counsel, set to be heard on April 29, 2010
At the April 8, 2010 hearing on the order to show cause, Rodriguez’s counsel failed to appear. The trial court acknowledged Nicholas Insogna (from Younessi’s office) had checked in with the court clerk, but was not present when the case was called about one hour and 15 minutes later. The court granted BDK’s motion for terminating sanctions and dismissed the case without prejudice after noting that Younessi had never appeared personally at any proceedings, and no substitution of attorney had been filed.
On April 28, 2010, Younessi filed an ex parte application to set aside the dismissal. In the declaration, Insogna stated that on the morning of April 8, 2010, he was scheduled to appear in both Department 78 on the instant case and in Department 16 (Judge Rita Miller) on an unrelated case. After checking in with the Department 78 clerk, Insogna requested second call, which he was told would occur at 9:30 a.m. Insogna then went to Department 16 for a 9:00 a.m. appearance. However, because not all counsel had checked in, Judge Miller decided to call the case later and insisted the attorneys of record on the case who were present remain in the courtroom until that time. At around 9:25 a.m., Judge Miller recalled the case and conducted the hearing, which lasted approximately 30 minutes. Once the hearing had ended, Insogna returned to Department 78, arriving shortly before 10:00 a.m. He learned “to [his] surprise” that the case had been called and dismissed due to his failure to appear. According to attorney Insogna, “had [he] been able to leave Department 16 earlier, [he] would have attended to the hearing in Department 78 in a timely fashion. [¶] [His] failure to appear was caused by [his] own mistake in judgment and surprise at the delay in Department 16.”
At the April 28, 2010 hearing on the ex parte application, Insogna requested that the dismissal be set aside so new counsel could file a substitution of attorney and Younessi could withdraw as counsel of record. However, the trial court declined to set aside the dismissal after Insogna stated there was no pending statute of limitations problem. The court suggested the “practical solution” was to enable Rodriguez’s new counsel to re-file the complaint.
On May 6, 2010, Younessi filed a second ex parte application to set aside the dismissal. At the conclusion of the hearing, the trial court took the matter under submission, and on May 10, 2010, denied the second ex parte application. Rodriguez appealed.
His notice of appeal challenges the April 8, 2010 order that dismissed the case. However, Judge Fahey did not sign and enter the order of dismissal until March 2, 2011. We deem the appeal to have been taken from that appealable order. (See Cal. Rules of Court, rule 8.308(c) [“A notice of appeal filed before the judgment is rendered or the order is made is premature, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order”].)
DISCUSSION
Section 473, subdivision (b), authorizes the trial court to relieve a party from a default judgment or dismissal entered as a result of the party’s or her attorney’s mistake, inadvertence, surprise or neglect. It provides for both mandatory and discretionary relief.
Courts have limited the application of the mandatory provision to those dismissals procedurally equivalent to defaults. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618; Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1817-1824.) ‘“[A] default judgment is entered when a defendant fails to appear, and, under section 473, relief is afforded where the failure to appear is the fault of counsel. Similarly, under our view of the statute, a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion, and relief is afforded where that failure to appear is the fault of counsel. The relief afforded to a dismissed plaintiff by our reading of the statute is therefore comparable to the relief afforded a defaulting defendant.”’ (Leader, supra, at p. 619, citing Peltier, supra, at pp. 1820-1821; see also English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 141.) This interpretation carries out the statute’s policy of placing plaintiffs whose cases are dismissed for counsel’s failure to respond to the dismissal motion on the same footing as defendants who have defaulted because of counsel’s failure to respond. (Huens v. Tatum (1997) 52 Cal.App.4th 259, 264; disapproved on other grounds in Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256-257.) The purpose of the statute is to relieve the hardship on those parties who have lost their day in court solely because of counsel’s inexcusable failure to act. (Huens v. Tatum, supra, at p. 264.)
Mandatory relief is available “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....” (§ 473, subd. (b).) “[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.” (Leader, supra, 89 Cal.App.4th at p. 612.) Where, as here, the applicability of the mandatory relief provision does not turn on disputed facts and presents a pure question of law, it is subject to our de novo review. (Ibid.)
Rodriguez was entitled to relief from the dismissal of his complaint due to his counsel’s mistake, inadvertence, surprise or neglect. Younessi filed the first ex parte application for section 473 relief on April 28, 2010, well within six months of the purported dismissal on April 8, 2010, and the application was in proper form. While the declaration was poorly crafted – it could be said Insogna fell on his sword, but barely drew blood – the dismissal was caused solely by his neglect, and not by any action, or inaction, by Rodriguez. Thus, the ex parte application for relief should have been granted.
DISPOSITION
The order of dismissal is reversed, and the matter is remanded to the trial court. On remand, the court may consider the imposition of appropriate monetary sanctions or other relief against Younessi under section 473, subdivision (c)(1). Each party shall bear its own costs on appeal.
We concur: PERLUSS, P. J., JACKSON, J.