Sarwari v. Lodin CA1/2

California Court of Appeal Jun 15, 2022 No. A163918Unpublished

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Holding. The court affirmed the denial of a motion to set aside a dismissal, holding that the trial court did not abuse its discretion in finding the attorney's failure to appear was not excusable neglect and that the mandatory relief provision of Code of Civil Procedure section 473(b) did not apply to this dismissal.

Issues

Whether the trial court abused its discretion in denying a motion to set aside a dismissal based on mistake, inadvertence, surprise, or excusable neglect.
Whether the mandatory relief provision of Code of Civil Procedure section 473(b) applies to a dismissal resulting from an attorney's failure to appear at a hearing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The trial court is vested with broad discretion to determine whether to grant relief under this provision; its factual findings are entitled to deference; and we will reverse the trial court’s determination only if it “ ‘exceed[s] the bounds of reason.’ ””

“The word “dismissal” in the mandatory provision is interpreted narrowly to apply only when a plaintiff’s attorney fails to respond to a dismissal motion.”

“Because the mandatory provision of section 473(b) is inapplicable, the trial court did not err in denying counsel’s oral request that the court set aside its order under that provision.”

Filed 6/15/22 Sarwari v. Lodin CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SAJIDA SARWARI, Plaintiff and Appellant, A163918 v. SHAKIRULLAH LODIN, (Alameda County Super. Ct. No. RG19017210) Defendant and Respondent.

When Sajida Sarwari and her attorney failed to appear at a hearing on Sarwari’s application for an order to show cause regarding contempt of a restraining order, the trial court dismissed the application without prejudice. Sarwari moved to set aside the dismissal order on grounds of mistake, inadvertence, surprise, and excusable neglect, and now appeals from the trial court order denying her motion. Because she fails to show prejudicial error, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2019, Sarwari was granted a civil harassment restraining order against Shakirullah Lodin. In January 2021, Sarwari filed an application for an order to show cause regarding contempt of the restraining order. (All subsequent dates are in 2021.) The application, which is not included in the record on appeal, was granted in February, but in April the court vacated the order granting the

application on its own motion, based on its conclusion from the record that the application had not been properly served on Lodin. The court scheduled a hearing on the application to take place in May. At the May hearing, where Sarwari and her counsel appeared by means of the BlueJeans remote platform and Lodin and his counsel appeared in person, the court continued the matter to August “for service of the application.” At the August hearing, Sarwari, Lodin, and their counsel appeared via BlueJeans. When the court attempted to conduct the arraignment, Sarwari’s counsel stated that one of the counts should be dismissed. It was not clear to the court or Lodin’s counsel what was to be dismissed, because the documents that Sarwari had filed with the court and served on Lodin did not include specific allegations in support of the order to show cause.1 The court continued the hearing “for arraignment only” to September 23, and ordered that the September 23 hearing would take place in person, with the parties expected to appear at 10:00 a.m. in “Department 105, Civil Harassment, Wiley W. Manuel Courthouse, 661 Washington Street, Oakland.” On September 23, Lodin and his counsel were in the courtroom when the matter was called at 10:40 a.m., but neither Sarwari nor her counsel were present. Per the minute order from that day, the court noted that doors to the courtroom had been opened to the public at 8:40 a.m. and that the BlueJeans platform was functioning, and then “dropped” the application on account of Sarwari’s failure to appear. On October 5, Sarwari’s counsel, Allan Frumkin, filed a motion to set aside the dismissal of Sarwari’s application for mistake, inadvertence,

Sarwari v. Lodin CA1/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

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