Motion to Set Aside/Vacate Dismissal
Motion to be Relieved as to Defendant Lois Smith
The motion of attorney Josue C. Guerrero and law firm Greenacre Law, LLP to be relieved as counsel for defendant Lois Smith is GRANTED. (Code Civ. Proc., § 284; Cal. Rules of Court, rule 3.1362.) Attorney will be relieved as counsel of record for client effective upon filing of a proof of service of the signed order on client.
Moving attorney to give notice. 10 20-01176795 Motion to Set Aside/Vacate Dismissal
Loudon vs. Get It While Plaintiff John C. Loudon’s Motion to Set Aside Dismissal is DENIED. You Can LLC “Although the language of the mandatory provision of section 473, subdivision (b), on its face, affords relief from unspecified dismissal caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs' attorneys as a perfect escape hatch to undo dismissals of civil cases. Courts have limited the application of the mandatory provision to those dismissals procedurally equivalent to defaults.” (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483 (cleaned up).)
“A default judgment is entered when a defendant fails to appear, and, under section 473, relief is afforded where the failure to appear is the fault of counsel. Similarly, under our view of the statute, a dismissal may be entered where a plaintiff fails to appear in opposition to a dismissal motion, and relief is afforded where that failure to appear is the fault of counsel. The relief afforded to a dismissed plaintiff by our reading of the statute is therefore comparable to the relief afforded a defaulting defendant.” (Leader v.
Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 619.) In Leader, the court ruled that failure to file an amended complaint after a demurrer has been sustained with leave to amend is not within the scope of Section 473, subdivision (b) because plaintiff had an opportunity to oppose the dismissal at the demurrer hearing. (Leader, supra, 89 Cal.App.4th 603, 621.)
The dismissal of Defendant Byron Holley was not procedurally equivalent to a default judgment. It was Plaintiff who requested the dismissal. Thus, Plaintiff was not deprived of opposing the merits of the dismissal by his attorney’s mistake. Therefore, relief under may only be offered through the Court’s equitable power.
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Courts’ equitable power to set aside or modify judgments is limited. “[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) One circumstance is where there is evidence of an extrinsic mistake, “a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Id. at 981.) “Extrinsic mistake is found when [among other things] ... a mistake led a
court to do what it never intended....” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472.)
Plaintiff has not demonstrated an extrinsic mistake that led to his attorney requesting the dismissal of Holley. Counsel states they requested Holley’s dismissal because they believed Holley had not been served with the Complaint. This is an intrinsic mistake to the litigation and to Plaintiff’s counsel. Thus, the Court declines to exercise its equitable power in the absence of appropriate circumstances authorizing its use. 11 24-01407733 1) Motion to Compel Answers to Form Interrogatories 2) Motion to Compel Answers to Special Interrogatories Townsend vs. Ford 3) Motion to Compel Production Motor Company 4) Motion to Compel Response to Requests for Admissions
Form Interrogatories
Defendant Ford Motor Company’s Motion to Compel Responses to Form Interrogatories is GRANTED.
Plaintiff is ORDERED to serve responses to Defendant’s Form Interrogatories (set one) without objections within 20 days of this order. (See Code Civ. Proc., § 2030.290(a).)
Defendant’s request for sanctions is GRANTED in the amount of $560 against Plaintiff and his counsel of record, jointly and severally. Plaintiff has served responses; however, the responses include improper objections. Plaintiff has not demonstrated mistake, inadvertence, or excusable neglect in failing to originally serve timely responses. The court may relieve the party of their waiver of objections if the responding party shows they (1) has subsequently served a substantially compliant response, and (2) that her failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290(a)(1)-(2).) Plaintiff has only offered an explanation as to why he did not serve responses nearly a year after the responses were originally due.
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2030.290(c).)