Afshin Eslami M.D. vs. Dignity Health

34-2022-00326241-CU-NP-GDS: Afshin Eslami M.D. vs. Dignity Health 05/09/2024 Hearing on Motion to Dismiss in Department 53

were other defendants named in the complaint, told me that the associate that he had relied upon for this matter had left his firm, and that as a result of situations like this we [sic] was ready to leave civil practice and return his focus to criminal defense. Mr. Khouri informed me that he would be in federal court on January 8, 2024, and so Dignity Health agreed to reschedule the hearing. On January 5, 2024 at 10:15 a.m., I sent Mr. Khouri a second email re-noticing the ex parte hearing for January 11, 2024.” (Decl.

Rutenberg, ¶ 9, Ex. 6.) On January 11, 2024, the Court granted Defendant’s ex parte application for dismissal of the action and for entry of judgment, ordering Defendant to supply a proposed judgment of dismissal. (1/11/24 Minute Order.) On February 1, 2024, the Court entered Judgment in favor of Defendant. (2/1/24 Judgment.) On March 28, 2024, nearly two months after the case was dismissed and almost three months after Plaintiff’s counsel acknowledged learning of the status of the case, Plaintiff filed the instant motion attempting to seek relief from the judgment.

Plaintiff asserts that he brings the instant motion to set aside dismissal pursuant to Code of Civil Procedure section 473 (b) and argues, “The situation at hand involved mistake, inadvertence, and surprise.” (Memo. Of P’s & A’s, 1:14-15.) Plaintiff’s counsel avers that prior to receiving ex parte notice of Defendant’s application to dismiss this matter, he had no knowledge the Court held a hearing on that demurrer on December 1, 2023. Plaintiff’s counsel states: “Prior to January 11, 2024, I had no knowledge that the Court had ordered the First Amended Complaint to be amended within 11 days.” (Decl.

Khouri, ¶¶ 3-4.) Plaintiff then argues: “Relief is mandatory only from those dismissals which are the ‘procedural equivalent of a default’ i.e., those which deprive plaintiffs of their day in court. Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618. Code of Civil Procedure §473(b) requires the court to set aside a dismissal based on an attorney affidavit of fault. It also states, ‘the Court must vacate dismissals resulting from the attorney’s mistake, inadvertence, surprise or neglect.’ The situation here involves only the fault, mistake, inadvertence, or surprise of Plaintiff Counsel.” (Memo.

Of P’s & A’s, 1:27 – 2:5.) Defendant opposes the motion, arguing that Plaintiff fails to state any legal grounds to support his requested relief. Defendant argues, “While Eslami asks for mandatory relief from dismissal and judgment under Code of Civil Procedure section 473(b), he needed to request discretionary leave to file an amended complaint after missing the Court-imposed deadline to do so. That relief is not available under the mandatory statute. See Leader v. Health Indus. Of Amer., Inc., 89 Cal.

App. 4th 603, 607 (2001) (holding that mandatory relief under section 473(b) is not available when case was dismissed following plaintiff’s failure to file amended pleading within time allowed).” (Opposition, 1:3-9.) Defendant further argues that after concluding that mandatory relief from dismissal for plaintiffs is limited only to circumstances like a default judgment against a defendant, the Third Appellate

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00326241-CU-NP-GDS: Afshin Eslami M.D. vs. Dignity Health 05/09/2024 Hearing on Motion to Dismiss in Department 53

District in particular has construed the word ‘dismissal’ in the mandatory provision of section 473(b) as having a limited meaning. (English v. IKON Bus. Sols., Inc., 94 Cal. App. 4th 130, 145-47 (2001) (mandatory relief is not “intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal”). Defendant argues that If it were not limited, then plaintiffs and their counsel could frequently require that a court relieve them from the adverse consequences of all manner of litigation choices and failings (as Plaintiff seeks to do here). (Opposition, 2:7-15.)

On reply, Plaintiff argues that relief is mandatory for dismissals that are the procedural equivalent of a default, and that such is the case here because Plaintiff’s counsel never received notice of the demurrer hearing on December 1, 2023. (Reply, 1:21-2:4.) Plaintiff does not specifically cite any supporting case law, but does ask the Court to, “See: Weil & Brown, Civil Procedure Before Trial, ‘Defaults’ § 5:299.2,” which provides: “Dismissals equivalent to default: Relief is mandatory only from those dismissals which are the “procedural equivalent of a default”; i.e., those which deprive plaintiffs of their day in court. [See Leader v.

Health Indus. of America, Inc. (2001) 89 CA4th 603, 618, 107 CR2d 489, 501] For example, this may include dismissals based on plaintiffs’: — failure to amend or file pleadings within the time ordered by the court, such as failure to timely file an amended complaint in response to a demurrer (Pagnini v. Union Bank, N.A. (2018) 28 CA5th 298, 304, 239 CR3d 263, 266-267; see ¶ 5:300.28); — failure to respond to discovery ordered by the court, leading to terminating sanctions (see Rodriguez v. Brill (2015) 234 CA4th 715, 719, 184 CR3d 265, 267); — failure to oppose a dismissal motion (see Bernasconi Comm’l Real Estate v.

St. Joseph’s Regional Healthcare System (1997) 57 CA4th 1078, 1082, 67 CR2d 475, 477; J.A.T. Entertainment, Inc. v. Reed (1998) 62 CA4th 1485, 1492-1494, 73 CR2d 365, 369-372); or — failure to pay transfer fees after an order transferring venue which results in dismissal. [See Gee v. Estate of Jewett (2016) 6 CA5th 477, 491, 211 CR3d 137, 148]” Analysis First, on December 1, 2023, the Court issued an order sustaining Defendant’s demurrer with 10- days leave to amend. Second, on January 11, 2024, the Court granted Defendant’s ex parte application seeking an order of dismissal of the action and entry of judgment.

Third, on February 1, 2024, the Court entered the Judgment against Plaintiff and in favor of Defendant. According to its Notice of Motion, Plaintiff seeks only one form of relief – “for an order setting aside the judgment taken against Plaintiff on January 11, 2024,” which itself misstates the date

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00326241-CU-NP-GDS: Afshin Eslami M.D. vs. Dignity Health 05/09/2024 Hearing on Motion to Dismiss in Department 53

of the judgment, given that no judgment was entered on such date. (Notice, 1:22-23; 2/1/24 Judgment.) That being said, the Court concludes that adequate notice was made that Plaintiff seeks to set aside the only judgment taken against it in this action. While Defendant heavily relies on Leader v. Health Indus. Of Amer. (2001) 89 Cal.App.4th 603, the Court finds this case distinguishable. Instead, this case is more analogous Pagnini v. Union Bank, N.A. (2018) 28 Cal. App. 5th 298, 305, which explained: “Respondents rely on Leader, supra, 89 Cal.App.4th 603, but that case is consistent with our holding.

There, the defendants' demurrers were sustained with leave to amend, the plaintiffs failed to file an amended complaint within the time permitted by the trial court, and the defendants moved to dismiss the action when the plaintiffs offered an untimely amended complaint. (Leader, at p. 607.) Following a hearing, the trial court dismissed the plaintiffs' action. (Id. at p. 611.) The Court of Appeal affirmed, concluding, among other things, that the mandatory provision of Section 473(b) did not apply to relieve the plaintiffs from their counsel's failure to file an amended complaint. (Leader, at p. 620.)

Leader reasoned the dismissal was not analogous to a default judgment because it followed a hearing at which the trial court received and considered the plaintiffs' opposition. (Id. at p. 621.) The court held Section 473(b)'s mandatory provision did not apply to “discretionary dismissals based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion.” (Leader, at p. 620.)

In effect, the motion at issue in Leader was the dismissal motion contemplated under section 581, subdivision (f)(2), which provides in relevant part as a basis for dismissal that “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” The Court of Appeal in Leader did not suggest the defendants' motion was not a dismissal motion or that a dismissal resulting from an attorney's failure to oppose the motion would have been outside the scope of Section 473(b)'s mandatory provision.

Instead, the court explained that “the ‘day in court’ envisioned by [prior case law] 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.” (Leader, at p. 621.) Because the plaintiffs did respond to the motion to dismiss, they were not entitled to Section 473(b)'s mandatory relief. (Leader, at p. 620; see also Younessi, supra, 244 Cal.App.4th at p. 1148 [distinguishing Leader because in Younessi “the dismissal resulted from an order granting [an] ex parte application for entry of a dismissal, without any opposition from plaintiffs that would allow the trial court to evaluate why they had failed to timely file an amended complaint”].)

In contrast, in the present case, appellant's counsel did not respond to respondents' demurrer, a dismissal motion under

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00326241-CU-NP-GDS: Afshin Eslami M.D. vs. Dignity Health 05/09/2024 Hearing on Motion to Dismiss in Department 53

section 581, subdivision (f)(1).” Id. at 305-306 Here, as in Pagnini, Plaintiff did not oppose the demurrer. And, in addition, as in Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1148, here Plaintiff did not oppose the ex parte application for entry of dismissal or be heard in relation thereto. Plaintiff did not have the required “day in court” at either of these two (effectively) dismissal motions, and thus according to Pagnini and Younessi, Plaintiff is entitled to mandatory relief under Code of Civil Procedure section 473(b). Plaintiff’s motion to set aside the judgment entered against it in this action is GRANTED. Defendant’s request for sanctions is DENIED. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.