Lorenzini v. Volkswagen Group of America Inc.

series of procedural failures, and that this action was dismissed after hearing from Plaintiff’s counsel.

In Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, the trial court dismissed the case for failing to bring it to trial within three years under CCP section 583.410, which gives a court discretion to dismiss an action for delay in prosecution. The plaintiff moved for relief under CCP section 473, asserting that his attorney’s decision not to move the case forward until plaintiff’s condition had stabilized constituted mistake or neglect within the meaning of that provision. (Id., at p. 1812.)

The CCP section 473 motion was made after the plaintiff filed opposition to the defendant’s motion to dismiss, and after a motion for reconsideration under CCP section 1008. (Id., at p. 1813.) In support of the section 473(b) motion, the plaintiff had provided a statement from his prior attorney who stated: “the decision to proceed at the pace and as plaintiff did [sic] was solely mine.” (Id., at p. 1814.)

In upholding the trial court’s denial of the CCP section 473(b) motion, the appellate court noted that “when the Legislature amended section 473 to include this provision, it left the discretionary dismissal statutes (§ 583.410 et seq.) intact. Under these statutes, the trial court may dismiss an action for failure to serve the complaint within two years or to bring the case to trial within three years (§ 583.420, subd. (a)), exercising its discretion according to the criteria prescribed by the Judicial Council. (§ 583.410, subd. (b); Cal. Rules of Court, rule 373(e).).” (Id. at p. 1816.) The appellate court noted that the vast majority of plaintiffs whose actions are dismissed under section 583.410 are due to attorney neglect such that section 473(b) would nearly nullify the discretionary dismissal statutes. (Ibid.)

Here, this court discussed Plaintiff’s untimely request for a hearing on the tentative ruling published for the OSC calendar. But this court did not consider the merits of Plaintiff’s counsel’s explanation regarding his failure to appear at the CMC hearing. Defendant’s counsel was not present at the OSC hearing and Plaintiff’s counsel could not confirm notice was given to Defendant of Plaintiff’s counsel’s intent to appear at the OSC hearing. In short, the action was dismissed for failing to timely request a hearing on the OSC tentative ruling. This court has not previously considered a formal motion or explanation of Plaintiff’s failure to appear at the August 5, 2025, CMC hearing.

IV. Attorney Fees and Costs

CCP section 473(b) states that when a motion is granted pursuant to an attorney affidavit of fault this court should “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Neither party has addressed this issue.

V.

Conclusion

This court finds that the requested relief is mandatory based upon Plaintiff’s former counsel’s mistake, inadvertence, surprise, or neglect. The motion is GRANTED. The dismissal entered on October 28, 2025, is hereby vacated and set aside. This court will sign the proposed order.

4. 25CV01793, Lorenzini v. Volkswagen Group of America Inc.

Per the request of submitted party, both the Motion for Protective Order and the Motion to Impose Terminating and Monetary Sanctions have been DROPPED from calendar.

5. 25CV04758, Garcia v. LCS Community Employment, LLC

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