Garcia v. Fresno Plumbing & Heating, Inc.

applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) “It is the policy of the law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, citations omitted.) Also, the moving party must show that they were diligent in seeking relief from the default, and that they sought relief within a reasonable time after they learned of the default. “This court has held that what a ‘reasonable time’ is in any case depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default. In other words, the moving party must not only make a sufficient showing of ‘mistake, inadvertence, surprise, or neglect’ in order to excuse the original default, but must also show diligence in filing its application under section 473 after learning about the default. If there is a delay in filing for relief under section 473, the reason for the delay must be substantial and must justify or excuse the delay.” (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181, citations omitted.) Here, plaintiff seeks relief from the dismissal under the both mandatory and discretionary relief portions of section 473(b). The mandatory portion of section 473(b) does not require plaintiff to show that the dismissal was entered due to the excusable mistake, inadvertence, surprise, or neglect of himself or his attorney. Instead, he only has to provide a declaration from his attorney stating that the dismissal was entered due to his attorney’s mistake, inadvertence, surprise, or neglect, whether the error was excusable or not. (Code Civ. Proc., § 473, subd. (b).) As long as the dismissal was actually entered due to the attorney’s mistake or neglect, even if the attorney’s actions were not reasonable, the court must grant relief. (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) “The attorney affidavit provision authorizes relief from the entry of default and the resulting default judgment or a dismissal. It does not permit relief from other judgments, such as a summary judgment or judgment after trial. It also does not allow relief from a costs order. Although the attorney affidavit provision authorizes relief from a dismissal, it does not apply to dismissals under section 583.410 for delay in prosecution of the action. This is because these types of dismissals are ‘ordered after a hearing in which the court has evaluated and considered the excuses for delay. Plaintiff cannot circumvent the court's ruling by filing an attorney affidavit of fault: “(T)he Legislature cannot have intended section 473 to be the perfect escape hatch from the dismissals statutes.”’” (Id. at pp. 989–990, citations omitted.) Here, plaintiff’s counsel moves for relief under the mandatory portion of section 473(b), contending that her failure to file the class certification motion by the courtordered deadline of October 14, 2025 was due to her mistake or neglect in selecting “Motion (No Fee)” instead of “Motion... $60” when submitting the motion for filing, which resulted in the filing service failing to pay filing fees for the motion and the clerk rejecting the filing. She alleges that her mistake is likely to result in the denial of the class

certification motion and dismissal of the class claims, and thus the mandatory portion of section 473(b) applies and requires the court to grant relief. However, so far, the court has not dismissed the class claims from the case, and no default or default judgment has been entered. Thus, the mandatory portion of section 473(b) does not apply here. The mandatory portion of section 473(b) only applies where there is a default, default judgment, or dismissal entered that was the result of the attorney’s mistake or neglect. Since there has been no default, default judgment, or dismissal entered here, the court will not grant relief under the mandatory portion of the statute. On the other hand, the court intends to grant relief under the discretionary portion of section 473(b). Unlike the mandatory portion of the statute, the discretionary portion allows the court to grant relief from a judgment, dismissal, order, or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (Lorenz, supra, at p. 989, citing Code Civ. Proc., § 473(b).) Thus, even if no default, default judgment, or dismissal has been entered, the court still has discretion to grant relief from an order or other proceeding as long as the moving party shows that the proceeding was taken as a result of mistake, inadvertence, surprise, or excusable neglect. (Ibid.) “The test for discretionary relief under Code of Civil Procedure section 473 requires the party seeking relief to show excusable error. ‘“A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” In determining whether the attorney's mistake or inadvertence was excusable, “the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.[”] In other words, the discretionary relief provision of section 473 only permits relief from attorney error “fairly imputable to the client, i.e., mistakes anyone could have made.” “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.” [¶] The party seeking relief under section 473 must also be diligent. Thus, an application for relief must be made ‘within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” [¶] Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue.’” (Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132–1133, citations omitted.) Here, plaintiff’s counsel failed to file the class certification motion by the courtordered deadline of October 14, 2025. However, counsel alleges that she did serve the class certification motion on opposing counsel on October 14, 2025, and she attempted to file the motion with the court electronically. (Kirnosova decl., ¶ 5.) The only reason that the motion was not actually filed with the court was that counsel inadvertently selected the wrong category on the drop-down menu with the electronic filing service. (Id. at ¶ 8.) She selected “Motion (No Fee)” instead of the category indicating a filing fee was required. (Ibid.) As a result, the filing service did not pay the $60 filing fee and the court clerk rejected the motion. (Ibid.) Also, plaintiff’s counsel was on leave until 5

November 18, 2025, and she was swamped with emails and matters in other cases when she returned from leave, so she was not aware of the rejected filing until she received defendant’s notice of opposition and statement of failure to file the motion on December 15, 2025. (Id. at ¶¶ 11, 12.) She filed the motion for class certification on January 7, 2026, and she filed her motion for relief from the failure to file the motion on time on January 23, 2026. (Id. at ¶ 14.) Thus, plaintiff’s counsel has made an adequate showing that the failure to file the motion pursuant to the court’s deadline was the result of excusable mistake, inadvertence, or neglect, as the failure to select the correct category for electronically filing a motion is a mistake that anyone could have made, even with the exercise of reasonable diligence. Also, while counsel did delay in resubmitting the motion and seeking relief from the late filing, the delay was not unreasonable or excessive. Counsel has also adequately explained the delay in filing the motion and seeking relief, which was caused by her being on leave and then being swamped with other work after she returned. Once she realized the motion had been rejected, she filed it within three weeks and sought relief two weeks later. Thus, plaintiff did not excessively delay in bringing the motion for relief after she discovered the filing had been rejected. While defendant claims that it will be prejudiced because the class certification motion will now be heard later and the class period and number of class members may expand due to the delay, the court can adjust the class size and period to account for the delay, which should mitigate any prejudice. Also, while defendant complains that plaintiff did not submit a copy of the proposed pleading with his motion for relief as required by the Rules of Court, plaintiff has already filed the motion for class certification with the court, so there was no need to also submit a copy of the motion for class certification with the motion for relief. Finally, defendant has pointed out that the named plaintiff’s declaration was not even signed until December 9, 2025, several weeks after the class certification motion was due. Defendant argues that the lack of a declaration from the plaintiff means that the failure to timely file the class certification motion was not caused by counsel’s error in failing to pay the filing fee, but rather because counsel did not yet have a signed declaration from the named plaintiff. However, there is no dispute that plaintiff did serve and attempt to file the class certification motion on October 14, 2025, which was the deadline for filing the motion. The fact that the motion was incomplete because there was no declaration from the named plaintiff at the time may have rendered the motion defective, but it would still have been timely filed but for the failure to pay the filing fee. Therefore, the lack of the plaintiff’s declaration was not the cause of the late filing. Nor has defendant shown that the failure to obtain the plaintiff’s declaration on October 14, 2025 caused it any real prejudice. The declaration was eventually filed on December 9, 2025, and defendant has had ample time to read and consider it, as well as to respond to plaintiff’s claims. Therefore, the court intends to grant plaintiff’s motion for relief from the late filing of the motion for certification. Also, since the court intends to grant plaintiff’s motion for relief, it will deny defendant’s motion to strike and dismiss the class claims.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order 6