LILLY RANEY VS. COURIER PLUS, INC., A CALIFORNIA CORPORATION, ET AL

May 8, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

9:00 AM Line 2 24-CIV-03487 LILLY RANEY VS. COURIER PLUS, INC., A CALIFORNIA CORPORATION, ET AL

LILLY RANEY TASHA T. SALVERON COURIER PLUS, INC., A CALIFORNIA CORPORATION KRISTA M. CABRERA

Plaintiff’s (Amended) Motion to Set Aside Judgment Under California Code of Civil Procedure § 473(b)

TENTATIVE RULING:

Plaintiff Lilly Raney’s First Amended Motion to Set Aside Judgment Under California Code of Civil Procedure § 473(b) is DENIED.

Defendant Courier Plus, Inc.’s Evidentiary Objections are OVERRULED.

Plaintiff Lilly Raney moves to set aside the judgment of dismissal entered against her and in favor of Defendant Courier Plus, Inc. (“Courier”) on May 29, 2025, and for leave to file a third amended complaint curing defects in the prior pleading and adding new causes of action. Even assuming the amended motion is timely and does not exceed the scope of the Court’s March 10, 2026 order permitting an amended motion, the amended motion fails to establish a basis for mandatory or discretionary relief.

A. Legal Standard for Relief Pursuant to Code Civ. Proc. § 473 Subd. (b)

A court may relieve a party from a judgment taken or other proceeding against her through her or her attorney’s “mistake, inadvertence, surprise, or excusable neglect” on “any terms as may be just.” (Code of Civ. Proc., § 473, subd. (b).) The statute provides for discretionary relief and for mandatory relief. (Ibid.)

To be entitled to mandatory relief, a party must file “an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise, or neglect ... .” (Code Civ. Proc., § 473, subd. (b).) If this requirement is satisfied and the motion is otherwise timely and in proper form, the court must “vacate any ... resulting ... dismissal entered against the attorney’s client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.) When the conditions are satisfied, relief is mandatory, even if the mistake, inadvertence, surprise, or neglect is entirely inexcusable. (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1147–1149.)

To be entitled to discretionary relief, the moving party must show that the act or omission resulting in the adverse judgment is one that a reasonably prudent person might have committed under similar circumstances. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 910.) This showing must be made by a preponderance of the evidence, and a court has no discretion to grant relief if this showing is not made. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)

May 8, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

B. No Affidavit of Attorney Admitting Mistake

Raney’s request for mandatory relief is based on the alleged mistakes and neglect of her former attorney, Joseph A. Gross. Raney contends that Gross’ failure to save documents and communications, calendar appearances, and record case information resulted in three failures: (1) to file an opposition to the demurrer to the Second Amended Complaint (“SAC”), (2) to plead viable causes of action, and (3) to meet court deadlines.

However, Raney has not filed a sworn affidavit or declaration from Gross, only one from his successor and Raney’s now-former attorney, Brian M. Heit. “By its language, the statute ... requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517 [italics added].) That is, the plain text of the statute requires the declaration to be signed by the attorney who made the mistake— contrary to Raney’s bare assertion that any attorney may file a declaration blaming his or her co-counsel.

The motion and amended motion attempt to place blame squarely on one person: Gross. For the first time on reply—and apparently since Heit himself has left the case and cannot object—Raney points to Heit’s mistakes and neglect as causes of the judgment of dismissal in addition to the argued neglect by Gross. However, no such theory is set forth in the initial or amended memorandum of points and authorities, depriving Courier of its right to respond. This new, belated basis for relief thus cannot be considered.

Therefore, for the foregoing reasons, mandatory relief is denied.

C. Excusable Neglect Not Established

Raney also request discretionary relief, based on the same purported mistakes and neglect. “In examining the mistake or neglect, the court inquires whether ‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

“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.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400.) “In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782–1783.)

Here, there is no showing whatsoever that Gross’ neglect was excusable. Raney does not event attempt to explain why Gross’ “professional negligence” could have been committed by a reasonably prudent person under the same circumstances. (Mar. 18, 2026 Amended Motion, p. 4, l. 9.) Further as mentioned above, the motion places blame only upon Gross. By all accounts, the evidence submitted shows the opposite: inexcusable malpractice.

Therefore, for the foregoing reasons, discretionary relief is denied.

Accordingly, the Motion to Set Aside Judgment is DENIED.