WOODS v. PACIFIC BELL et al

02/04/25 Defendants filed an ex parte application for dismissal because Woods failed to file an amended complaint. Woods, through his counsel, filed an opposition and included a proposed first amended complaint.

02/06/25 Counsel for both plaintiff and defendant appeared remotely at the hearing and presented argument. The Court granted defendants’ motion to dismiss.

06/23/25 Notice of entry of judgment filed, including $2,050.87 in costs.

06/26/25 Woods learns his case was dismissed at a county planning hearing. (Decl. of Woods at ¶ 25.)

08/08/25 Woods files a substitution of attorney and is now self-represented.

08/13/25 Woods files a motion to vacate demurrer and dismissal pursuant to Code of Civil Procedure section 473, subdivision (b) based upon neglect of his prior attorney.

10/14/25 Court denies Woods’s motion to vacate demurrer and dismissal, finding he did not establish mistake, inadvertence or excusable neglect, that the motion was filed beyond the jurisdictional 6-month period, and did not include a proposed amended complaint.

04/14/26 Woods files a substitution of attorney and is now represented by counsel who filed this motion to set aside and vacate the dismissal of complaint based upon extrinsic fraud and mistake of Wood’s former counsel.

II. PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL Woods asserts through new counsel that the court should set aside the dismissal on the grounds of extrinsic fraud and mistake contending that his former counsel’s “conduct constituted a total failure of representation, effectively obliterating the attorney-client relationship ... .” (MPA at p. 14.) Woods alleges Sauders failed to inform him of court orders, failed to file a first amended complaint, failed to inform him his lawsuit had been dismissed until 13 days before the 180-day statutory deadline to file a motion for relief, failed to file a motion for relief, and failed to timely file a substitution of attorney so that Woods could seek relief from default in pro per. Woods attaches a proposed first amended complaint which alleges a single cause of action for negligence against AT&T; plaintiff dismissed all remaining defendants.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 1, 2026 TIME: 8:30 A.M.

Woods asserts that he is now seeking relief independent of a section 473(b) motion. Woods argues his earlier section 473(b) motion appears to have been denied primarily on procedural grounds and that neither Woods nor Saunders were present at this hearing. Woods argues that this claim against AT&T for negligence is meritorious.

In opposition, defendants argue that there are no exceptional circumstances here which warrant setting aside the dismissal that was entered by the court. Defendants contend that plaintiff was represented by counsel at the time the case was dismissed, that the underlying negligence case lacks merit, and that plaintiff was not diligent in attempting to revive the case after his section 473(b) motion was denied. Defendants assert that contrary to his contention, Woods did appear at the section 473(b) motion hearing.

Defendants maintain there is a stringent, three-part test which applies when a party seeks to have a dismissal or default set aside based upon extrinsic fraud or mistake: (1) meritorious case; (2) satisfactory excuse, and (3) that plaintiff demonstrated diligence in seeking to correct the mistake resulting in the dismissal once discovered. Defendants argue that Woods had not been abandoned by his attorney at the time the dismissal was entered on an ex parte basis and that counsel appeared on his behalf and filed an opposition. (Opp. at p. 7.) Defendants acknowledge this may be “bad lawyering” but is not positive misconduct – there was not a total failure of representation. Defendants insist that Woods did not act with diligence in filing this motion – he waited more than six months after the denial of his section 473(b) motion.

In reply, Woods argues that the motion is “framed as one for relief from extrinsic mistake – the doctrine California courts apply when a party is deprived of a hearing on the merits by his own attorney’s positive misconduct.” (Reply at p. 1.) Woods contends his delay was explained and he provides a supplemental declaration where he states between October 2025 and April 2026 he interviewed at least 12 different law firms before settling on his current counsel. Woods asserts he was cautious in seeking new counsel given his past dealing with Saunders. Once he retained counsel, it was only a week before this motion was filed. 1

III. DISCUSSION

“Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the grounds of extrinsic fraud or mistake. [Citations.] There are three essential requirements to obtain relief. The party in default must show: a meritorious defense [claim], a

1 Defendants filed an objection to this supplemental declaration, arguing that it constituted preexisting evidence that could have been provided in support of his moving papers. Although in general, new evidence is not properly admitted through reply papers, the Court in its discretion reviewed and considered Woods’s supplemental declaration. Therefore, defendants’ objection is overruled.

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 1, 2026 TIME: 8:30 A.M.

satisfactory excuse for not presenting a defense to the original action; and diligence in seeking to set aside the default once it is discovered.” (Weil & Brown Civil Proc. Before Trial (TRG 2025) § 5:435.) Equitable relief is only available with extrinsic fraud or mistake– “meaning the party was denied the opportunity to be heard.” (Id. at § 5:439.) “The usual case in which ‘extrinsic’ fraud is found is where a party was not represented by counsel. If the defendant [party] had a lawyer and the opportunity to litigate, any fraud or mistake will usually be classified as ‘intrinsic’ (hence, not a ground for equitable relief). [Citation.]

The result is otherwise where the attorney has totally failed to represent the client. Such ‘positive misconduct’ may be ground for equitable relief from the judgment. [Citations].” (Weil & Brown Civil Proc. Before Trial (TRG 2025) § 5.440.) (Emphasis added.) “As a general rule, however, the negligence of an attorney is imputed to the client. [Citation.]” (Seacall Dev. v. Santa Monica Rent Control Board (1999) 73 Cal.App.4th 201, 205.)

“For attorney misconduct to support equitable relief from a default judgment due to extrinsic mistake, there must have been ‘neglect of an extreme degree amounting to positive misconduct’ by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorney-client relationship and thereby preclude any imputation of counsel's neglect to the client. [Citation.] ‘Positive misconduct is found where there is a total failure on the part of counsel to represent his client.’” (People v.

One Parcel of Land (1991) 235 Cal.App.3d 579, 584.) “‘Positive misconduct’ is narrowly construed. It will be found only where there is a total failure on the part of counsel to represent the client, amounting to a ‘de facto severance of the attorney-client relationship.’ [Citation.]” (Weil & Brown Civil Proc. Before Trial (TRG 2025) § 5:355.) “Imputation of the attorney's neglect to the client ceases at the point where ‘abandonment of the client appears.’ [Citation.] What constitutes ‘abandonment’ of the client depends on the facts in the particular action.

Even where abandonment is shown, however, the courts also consider equitable factors in deciding whether the dismissal of an action should be set aside. These factors include the client's own conduct in pursuing and following up the case. [Citation.]” (Secall, supra, 73 Cal.App.4th at p. 205.)

Here, Saunders, while representing Woods, filed a complaint and filed an opposition to the demurrer, though it was late. He did not timely file a first amended complaint. Counsel for plaintiffs and defendants appeared at the hearing on the demurrer December 9, 2024, though neither formally opposed the tentative ruling. The hearing on defendants’ motion to dismiss occurred on February 6, 2025. Plaintiff filed an opposition to the motion and included a proposed first amended complaint. Counsel for plaintiff specially appeared as did counsel for defendants. The Court provided an opportunity for plaintiff’s counsel to be heard and then granted the motion to dismiss. Eventually, with Woods’s prompting, Saunders substituted out of the case on

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 1, 2026 TIME: 8:30 A.M.

August 8, 2025. Woods then filed a 473(b) motion on his own behalf on August 13, 2025. At the hearing on September 29, 2025, the parties appeared remotely. According to the minute order, Woods requested and presented oral argument even though he had not contested the Court’s tentative ruling. The Court then adopted the tentative ruling, denying the motion to set aside the demurrer and dismissal. On April 14, 2026, plaintiff’s new counsel substituted into the case and filed this motion on the same day.

The evidence does not demonstrate a total failure of representation on behalf of Woods such that there is a finding of positive misconduct. Woods complains of Saunders’s continual failure to communicate with him. While unsuccessful, counsel did oppose the ex parte request for dismissal, appeared at the hearing and offered argument. Emails attached to Mr. Woods’s declaration also show that he had serious concerns with his representation by the Saunders firm dating back to July 2023, nearly two years before the case was dismissed and before the complaint was filed. “[W]hen I start digging into your personal profile and the law firm’s history, I am suddenly drowning in red flags.” Woods writes, on July 10, 2023 to an attorney at Saunders’s office that “I was forced to do some background research, and I was not happy with what I found when I dug deeper.” (See, Decl. of Woods, Ex. E.)

In addition to not establishing the required “extrinsic fraud” the Court notes the other three stringent requirements to obtain relief. In particular, the Court looks to the diligence in seeking to set aside the dismissal– from September 29, 2025 to April 14, 2026 or 6 months and 16 days. Woods asserts the delay was because he was carefully interviewing potential new counsel. Woods, as of August 8, 2025, knew he was proceeding without counsel and that potential deadlines and remedies may not be known to him, as a self-represented litigant.

However, by April 14, 2026, when new counsel finally came aboard, Woods had been selfrepresented for 8 months and 6 days. “Beyond the 6-month period in which relief can be obtained under CCP §473(b), ‘there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ [Citation.]” (Weil & Brown Civil Proc. Before Trial (TRG 2025) §5:436.1.) The Court does not find exceptional circumstances.

Second, the merits of the negligence claim, as alleged, are questionable. Plaintiff asserts, in the proposed amended complaint, that in order to access the property, “one must traverse a wooden bridge that spans a protected creek.” (Proposed First Amended Complaint “PFAC” at ¶ 7.) (Emphasis added.) Plaintiff placed an order for AT&T internet service; AT&T dispatched a technician in a van to plaintiff’s property. (PFAC at ¶¶ 9-11.) The PFAC alleged that “[r]ather than contact Plaintiff for instructions on how to traverse the bridge, Plaintiff is informed and believes that AT&T’s technician chose to ignore the ‘Restricted Area Do Not Enter’ signs and

LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 1, 2026 TIME: 8:30 A.M.

attempted to traverse the bridge.” (PFAC at ¶ 11.) As the van drove across the bridge, it crashed the bridge deck because the van did not travel over the runner plank path. Plaintiff alleges the bridge cannot be restored to its original state and plaintiff will be forced to build a costly bridge which complies with the latest County building standards. Plaintiff hired AT&T to install service to his property and was presumably aware that a technician would be required to be onsite. The PFAC states that the only route into the property is over a bridge. The PFAC does not provide authority for the proposition that an individual invited onto the premises has a duty to contact the landowner before entry, to obtain instruction on how to safely traverse a bridge, which is the only access point to the property.

Despite the dismissal of the case, in light of the allegations raised against Saunders, the Court notes that Woods is not without alternate recourse.

IV. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE

1-10. The request for notice of these documents is denied because they are already part of the Court’s own file.

11. State Bar of California Attorney Profile for Gary Scott Saunders: Granted.

12. State Bar of California Decision re: Case Nos. SBC-20-O-30011 and SBC-20- O30276-MC against Gary Scott Saunders filed November 19, 2020: Granted.

13. Notice of Disciplinary charges, Case no. SBC-24-O-30924 filed on December 18, 2024, by the State Bar against Gary Scott Saunders: Granted.

14. Notice of Disciplinary Charges, Case no. SBC-25-O-30290 filed on March 19, 2025, by the State Bar against Gary Scott Saunders: Granted.

15. Notice of Disciplinary Charges, Case no. SBC0-26-O-30027 filed on January 20, 2026, by the State Bar against Gary Scott Saunders: Granted.