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Judge Meiers Erred in Failing to Grant Relief in Light of Attorney’s Affidavit of Fault—C.A.
By a MetNews Staff Writer
Los Angeles Superior Court Judge Barbara A. Meiers erred in declining to set aside the dismissal of an action based on the plaintiff’s lawyer not showing up for a hearing where an attorney’s affidavit of fault was filed and no finding was made indicating a disbelief of the statements, Div. Five of the Court of Appeal for this district declared Friday, reinstating the lawsuit.
The decision comes in a case where Charlene Schuh brought suit against Steven Chase for breach of contract and for assault and battery. Chase was served; a default was entered; Meiers set aside the default and ordered that Schuh file an amended complaint; she did; 11 unsuccessful attempts were made to serve Chase, according to a process server’s declaration; Meiers ordered that Schuh show cause on Jan. 17, 2023, why the case should not be dismissed based on a lack of service; Schuh’s attorney, Vladimir Shagramanov, did not appear at the hearing.
After learning that Meiers had ordered a dismissal on her own motion on Jan. 27, Shagramanov six days later filed a motion pursuant to Code of Civil Procedure §473(b) for an order vacating the dismissal. That section says, in part:
“[T]the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
Lawyer’s Declaration
Shagramanov said in his declaration:
“On 1/17/2023, I inadvertently did not appear at OSC re Dismissal for non service of process. I was confused and I appeared on another case in my office….in Department 31, Audra Mori, Presiding. ON January 17,2023, I mad e the mistake that I believed I had already appeared on this case and I failed to appear. I apologize to the court for my excusable error. It was my fault that the Plaintiff and I did not appear.
“I am requesting the Court to please set aside the dismissal and reinstate the case on a civil case active list.
“I humbly request the Court to set aside the dismissal and allow this case to proceed.”
The February 15, 2023 minute order denying the motion sets forth no reasons.
On March 22, Meier denied a motion for reconsideration, finding that “that there is no showing in the Motion if [sic] any facts on law not available at the time of the earlier ruling in issue and no good cause shown for relief on any other grounds.”
Judge Davis’s Opinion
Reversal of the judgment came in an Sharmaine unpublished opinion authored by Los Angeles Superior Court Judge Angela J. Davis, sitting by assignment. She wrote:
“Section 473(b) affords a party mandatory relief from a default judgment or dismissal that is entered due to the fault of the moving party’s attorney….”
Davis went on to say:
“Schuh’s motion complied with the requirements of section 473(b). The accompanying declaration by Schuh’s counsel explained that his failure to appear on January 17, 2023 resulted from his own calendaring error….
“Under section 473(b), when an attorney submits a declaration of fault, relief is mandatory unless ‘the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ The record contains no such finding by the trial court. Accordingly, Schuh was entitled to relief under the mandatory provision of section 473(b), and the court’s February 15, 2023 order denying relief was in error.”
The case is Schuh v. Chase, B328607.
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