Estate of Anthony Intravaia

The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

(§ 473, subd. (b).) Section 473, subdivision (b) contains both discretionary and mandatory provisions. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1414.) “Procedurally, an application for mandatory relief ‘must be filed within six months of entry of judgment ... .’ [Citation.] In addition, the application must ‘be in proper form, and be accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ [Citation.] Furthermore, the defaulting party must submit sufficient admissible evidence that the default was actually caused by the attorney’s error. [Citation.] ‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation.]” (Ibid.)

The moving party need not show that the neglect was excusable. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.) “[A] judgment of dismissal that implements a terminating sanction for

3 All further undesignated statutory references are to the Code of Civil Procedure. 2

discovery abuse is a ‘dismissal entered’ for purposes of section 473(b).” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 719.) “ ‘The first portion of ... section 473, providing that the court “may” relieve a party from a dismissal, vests the trial court with the discretion to vacate a dismissal based on a party’s or attorney’s excusable neglect.’ [Citation.]” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1418.) “ ‘In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.’ [Citation.]

In other words, the court’s ‘discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.’ [Citation.] [¶] A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney’s negligence is imputed to the client. [Citation.] ‘The inexcusable neglect of an attorney is usually not a proper basis for granting the client’s motion under section 473.’ [Citation.] ‘Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.’ [Citation.]” (Id. at p. 1419.) “ ‘[A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or of law, of himself or of his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.

In other words, a burden is imposed upon the party seeking relief to show why he is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]’ [Citations.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-624.) “ ‘[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’ [Citations.]” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1419.)

II.

Analysis

Objector seeks to set aside the order granting the motion for terminating sanctions under both the mandatory and the discretionary provisions of section 473, subdivision (b). The

motion does not challenge the January 7, 2026 order deeming admitted the matters stated in the requests for admission. One of Objector’s attorneys, Andrew Watters, declares that he was hired as associated counsel on February 27, 2026. (Declaration of Andrew G. Watters in Support of [Motion], ¶ 2.) He sent a notice of association of counsel to Objector’s attorney of record, Nada Dhahbi, but she did not return the signed copy until March 3, 2026, after the deadline to oppose the motion for terminating sanctions had passed. (Id. at ¶¶ 3.) “On March 13, 2026,” the day of the hearing on the motion for terminating sanctions, he “instructed Jeramy Stone from [his] office to attend the hearing for Motion for Terminating Sanctions and inform the Court that our office has been retained by Petitioner as Associated Counsel for Michael Intravaia and we are in the process of filing a signed copy of the Notice of Association of Counsel.” (Id. at ¶ 4.)

The notice was filed on March 16, 2026. (Id. at ¶ 5.) At the time the motion for terminating sanctions was pending, counsel resided in Southern California for the birth of his son and counsel did not return until March 13, 2026. (Id. at ¶ 6.) There were miscommunications between counsel and counsel of record between February 27, 2026 and March 13, 2026 but his office had begun to work on an opposition to the motion for terminating sanctions and a motion to set aside. (Id. at ¶ 7.) Nowhere in the declaration does Mr.

Watters explain who was responsible for filing the opposition, why no opposition was filed, or why no one contested the court’s tentative ruling granting the motion for terminating sanctions. In short, it does not speak to the cause of the dismissal. On May 8, 2026, another one of Objector’s attorneys, Arthur Lampel, filed a declaration that addresses the portion of the March 13, 2026 order indicating that Objector must transfer $1,371,184.79 to Petitioner’s counsel. Mr. Lampel declares that those funds were recovered pursuant to a settlement agreement in a wrongful foreclosure case. (Supplemental Declaration of Arthur H.

Lampel, ¶¶ 7-8.) He asserts that attorney fees have already been paid out of the approximately $1.3 million settlement, such that $672,710.87 remained and that those funds were distributed to Objector as a trustee of an unnamed trust of Decedent. (Id. at ¶¶

9-10, 12.)4 Mr. Lampel declares that the funds were distributed before he was aware of the instant case. (Id. at ¶ 10.)5 This declaration does not speak to the cause of the failure to oppose the motion for terminating sanctions. To succeed on a motion for relief under the mandatory provision of section 473, subdivision (b), “the defaulting party must submit sufficient admissible evidence that the default was actually caused by the attorney’s error.” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1414.)

Here, Objector’s counsel’s declarations in support of the motion do not expressly indicate the cause of the error. Nonetheless, it can be inferred from Mr. Watters’s declaration that attorney mishandling (i.e., neglect) was the cause of the failure to oppose the motion for terminating sanctions.6 Notably, “what must be attested to is the mistake, inadvertence, surprise, or neglect— not the reasons for it. (Accord, State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609 [] [attorney affidavit must include ‘admission by counsel for the moving party that his error resulted in the entry of a default or dismissal’ or a ‘real concession of error’].)” (Martin Potts & Associates, Inc. v.

Corsair, LLC (2016) 244 Cal.App.4th 432, 438 (Martin Potts).) In Martin Potts, the moving party’s counsel’s declarations “unequivocally spell[ed] out that he was Corsair’s lawyer; he received plaintiff’s filings from Corsair; he did

4 Based on the complaint attached as Exhibit A to the supplemental declaration, the court infers that the trust is the Anthony Jerome Intravaia Revocable Living Trust dated January 11, 2024. 5 Petitioner’s counsel has filed a memorandum of arguments challenging Mr. Lampel’s declaration but the arguments go to whether Objector’s counsel should be paid fees from the settlement proceeds. This issue is outside the scope of this motion, which only addresses whether the court should set aside the order granting terminating sanctions under section 473, subdivision (b). 6 The court also notes that, concurrently with the motion, Objector also filed a separate declaration of Mr.

Watters stating “Between February 27 to March 13, there were a number of miscommunications between me, Michael Intravaia, and his Attorney of Record Nada Dhahbi regarding representation. Even so, my office had begun to work on an Opposition to the Motion for Terminating Sanctions and this Motion to Set Aside. [¶] As a result of these miscommunications, an opposition was not filed, and the court ultimately granted Petitioner’s Motion for Terminating Sanctions.” (See Declaration of Andrew G. Watters in Support of Michael Intravaia’s Ex Parte Application, filed April 10, 2026, ¶¶ 7-8.)

nothing with those papers; and his decision to do so was his and his alone.” (Id. at p. 443.) The Court of Appeal held that that declaration sufficiently admitted neglect. (Ibid.) Here, Mr. Watters’s declaration indicates that he attempted to obtain Ms. Dhahbi’s signature on the notice of association so he could file the opposition, that his office began working on the opposition, and that there were miscommunications between Mr. Watters and Ms. Dhahbi. The court can infer from that state of affairs that the attorneys failed to file the opposition.

The court takes judicial notice of the docket in this action on its own motion that no opposition to the motion for terminating sanctions was filed before the hearing on that motion. (Evid. Code, § 452, subd. (d).) The court’s order granting terminating sanctions expressly indicated that the motion was unopposed and then went on to find that the requests for admission, which had been deemed admitted, established facts that countered the sole argument raised in Objector’s objection to Petitioner’s petition for letters of administration.

The court did not expressly find that the prerequisites for terminating sanctions were met. Under these circumstances, the court finds that the failure to oppose the motion for terminating sanctions was the cause of the dismissal and the failure to oppose the motion was caused by Petitioner’s attorneys. The court expressly declines to find excusable neglect, and thus does not grant discretionary relief, on these same facts because Objector has not explained why his attorneys other than Mr. Watters could not have filed an opposition, nor has he explained why a late opposition could not be filed even if Ms.

Dhahbi did not sign the notice of association until after the time to file an opposition to the motion for terminating sanctions had passed. The motion is GRANTED under the mandatory relief provisions of section 473, subdivision (b). As explained in Martin Potts, “mandatory relief comes with a price—namely, the duty to pay ‘reasonable compensatory legal fees and costs to opposing counsel or parties’ (§ 473, subd. (b)).” (Martin Potts, supra, 244 Cal.App.4th at p. 438.) Accordingly, Petitioner may seek her reasonable fees and costs by noticed motion.

CONCLUSION The motion to set aside is GRANTED. The January 7, 2026 order on the motion to deem admitted matters stated in requests for admission remains intact. Petitioner may seek her reasonable fees and costs by noticed motion. This matter is scheduled for a Status Conference on July 24, 2026, at 10:30 a.m. In the interm, the parties must meet and confer to determine how this action will proceed further.

- oo0oo -

7