Mireskandari v. Marks & Sokolov CA2/3

Filed 8/24/20 Mireskandari v. Marks & Sokolov CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
SHAHROKH MIRESKANDARI et al., B291935
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC531449)
v.
MARKS & SOKOLOV, LLC, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Affirmed.
James & Associates, Becky S. James and Lisa M. Burnett
for Plaintiffs and Appellants.
Kaufman Dolowich & Voluck, Barry Z. Brodsky and
Brian D. Peters for Defendant and Respondent Marks & Sokolov,
LLC.
Jenner & Block, Michael P. McNamara, Alexander M.
Smith and Matthew S. Hellman for Defendant and Respondent
Seyfarth Shaw, LLP.
Wilson Elser Moskowitz Edelman & Dicker, Peter C.
Catalanotti and Michael V. Shepherd for Defendant and
Respondent Novak, Druce, Connolly, Bove & Quigg, LLP.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
The trial court dismissed plaintiffs’ claims against
defendants after plaintiffs twice failed to appear at scheduled
hearings of which they had notice. Nearly six months later,
plaintiffs moved to vacate the dismissal under Code of Civil
Procedure1 section 473, subdivisions (b) and (d). The trial court
denied the motion, and plaintiffs appealed.
As we discuss, the trial court did not err in denying the
motion to vacate. The order of dismissal was not “void” within
the meaning of section 473, subdivision (d) because the trial court
had fundamental jurisdiction over the parties and the claims, and
the trial court did not abuse its discretion by concluding that
plaintiffs had not timely sought relief within the meaning of
section 473, subdivision (b). Accordingly, we affirm the order
denying the motion to vacate.
1 All subsequent statutory references are to the Code of Civil
Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Background
A. The Parties
Shahrokh Mireskandari and Paul Baxendale-Walker, both
disbarred United Kingdom solicitors, filed the present legal
malpractice action in December 2013 against three law firms—
Seyfarth Shaw, LLP (Seyfarth), Marks & Sokolov (Marks), and
Novak Druce Connolly Bove Quigg, LLP (Novak)—that had
represented plaintiffs in other actions. Seyfarth filed a cross-
complaint against Mireskandari for unpaid legal fees.
In January 2015, the trial court stayed this action pending
the completion of related proceedings in other judicial and
arbitral forums.
B. Goshgarian’s Motion to be Relieved as Plaintiffs’
Counsel
In 2016, plaintiffs’ counsel, Goshgarian & Marshall, PLC
(Goshgarian) moved to withdraw as counsel of record. On
August 4, 2016, the court granted the motion and ordered
Goshgarian relieved as counsel “effective upon the filing of the
proof of service of this signed order upon [plaintiffs]” at
“4035 Valley Meadow Road, Encino, CA 91436.”2
2 It appears from the record that this was Mireskandari’s
home address. Goshgarian represented that it had been
instructed to serve Baxendale-Walker at Mireskandari’s home
address; it had attempted to obtain Baxendale-Walker’s home
address in London, but neither Baxendale-Walker nor
Mireskandari had provided it.
3
The court’s order stated that the next hearing was set for
February 7, 2017, and it advised plaintiffs per the appropriate
Judicial Council form as follows:
—“[I]f the client will be representing himself or herself, the
client shall be solely responsible for the case. [¶] NOTICE TO
CLIENT WHO WILL BE UNREPRESENTED[:] . . . You may
wish to seek legal assistance. If you do not have a new attorney
to represent you in this action or proceeding, and you are legally
permitted to do so, you will be representing yourself. It will be
your responsibility to comply with all court rules and applicable
laws. If you fail to do so, or fail to appear at hearings, action may
be taken against you. You may lose your case.”
—“[I]t is the client’s duty to keep the court informed at all
times of the client’s current address. [¶] NOTICE TO CLIENT
WHO WILL BE UNREPRESENTED[:] The court needs to know
how to contact you. If you do not keep the court and other parties
informed of your current address and telephone number, they
will not be able to send you notices of actions that may affect you,
including actions that may adversely affect your interests or
result in your losing the case.”
Goshgarian served both plaintiffs with a notice of ruling
and copy of the order by mail at Mireskandari’s home address.3
3 Below, plaintiffs did not contest the accuracy of the service
address. On appeal, however, plaintiffs assert that the notice
was misaddressed because two digits of the zip code were
transposed. Because plaintiffs did not raise this issue below, we
deem it forfeited. (See Pacifica First National, Inc. v. Abekasis
(2020) 50 Cal.App.5th 654, 657 [plaintiff who defaulted on cross-
complaint forfeited appellate argument that proof of service of
4
C. Plaintiffs’ Failure to Appear at the February 7, 2017
Status Conference
On January 27, 2017, counsel for Seyfarth filed a case
management statement indicating that a status conference would
take place on February 7, 2017. Seyfarth’s counsel served the
case management statement on both plaintiffs at Mireskandari’s
home address.
Neither plaintiff appeared at the February 7, 2017 status
conference. The court therefore continued the status conference
to October 12, 2017, and set for the same day an order to show
cause why plaintiffs’ action should not be dismissed for failure to
appear at the status conference.
It is unclear whether a notice of the February 7, 2017
ruling was served on plaintiffs. Counsel for Seyfarth stated she
had prepared notice of the court’s ruling, but she was not able to
locate a copy of the proof of service corresponding to that notice.
D. Plaintiffs’ Failure to Appear at the October 12, 2017
Status Conference; Order Dismissing the Action
Without Prejudice
On September 28, 2017, counsel for Novak filed a case
management statement indicating that a status conference would
take place on October 12, 2017. The case management statement
was served on an attorney representing Mireskandari in a
separate proceeding.
On October 3, 2017, counsel for Marks served notice that it
would appear telephonically at the October 12, 2017 status
cross-complaint was insufficient by failing to raise it in the trial
court].)
5
conference. The notice was served on both plaintiffs at
Mireskandari’s home address.
Neither plaintiff appeared at the October 12, 2017 status
conference. The court therefore ordered plaintiffs’ claims
dismissed without prejudice and set a further status conference
for November 13, 2017 to discuss whether Seyfarth intended to
proceed with its cross-complaint. Seyfarth’s counsel prepared a
notice of dismissal of plaintiffs’ claims and of further status
conference, which was served on both plaintiffs at Mireskandari’s
home address in Encino, and on Baxendale-Walker at a London
address.4
On November 3, 2017, counsel for Seyfarth filed and served
notice that it had dismissed its cross-complaint against
Mireskandari, and that the status conference had been vacated in
light of the dismissal of all claims. That notice was served on
both plaintiffs at Mireskandari’s home address in Encino, and on
Baxendale-Walker in London.
4 In their reply brief, appellants assert that “[it] is not
known” whether the London address at which Baxendale-Walker
was served was his correct address. To the extent there is
uncertainty concerning Baxendale-Walker’s address, it is because
he failed to provide it to the court and the parties in violation of
his duty to “keep the court and other parties informed of [his]
current address.” Moreover, while Baxendale-Walker’s address
remains unknown to the parties and the court, it undoubtedly is
known to Baxendale-Walker himself. We trust he would not have
hesitated to advise the court had he been served at an incorrect
address.
6
II.
Plaintiffs’ Section 473 Motion
Nearly six months later, on April 10, 2018, plaintiffs moved
under section 473 for an order vacating the October 12, 2017
dismissal of plaintiffs’ claims. Plaintiffs urged they were entitled
to relief under section 473, subdivision (d) (section 473(d))
because they had not received notice that the case could be
dismissed at the October 12, 2017 status conference, thus
rendering the dismissal order void. Alternatively, plaintiffs
urged the trial court to grant relief under section 473,
subdivision (b) (section 473(b)), because plaintiffs were operating
under the mistaken belief that their appearances were not
required at the October 12 hearing due to the court-imposed stay.
Mireskandari and Baxendale-Walker submitted nearly
identical declarations in support of their motion to vacate. Each
plaintiff stated that he had not received notice that Goshgarian
had been relieved or that status conferences had been scheduled
for February 7, 2017 or October 12, 2017. Therefore,
Mireskandari said, it “came as a complete surprise to me when I
was recently forwarded a copy of the Court’s October 12, 2017
Minute Order dismissing my claims.” Baxendale-Walker made a
similar statement, saying that “[i]t . . . came as a complete shock
and surprise to me when Plaintiff Shahrokh Mireskandari
recently informed me, by forwarding a copy of the Court’s October
12, 2017 Minute Order, that our lawsuit had been dismissed.”
Defendants opposed the motion to vacate, contending that
plaintiffs were not entitled to relief under section 473(b) or (d).
Among other things, defendants urged that the judgment of
dismissal was not void; plaintiffs had actual and constructive
notice of the status conferences and the possibility their claims
7
would be dismissed if they failed to appear; and the dismissal did
not result from plaintiffs’ inadvertence, mistake, or excusable
neglect.
On June 11, 2018, the trial court denied plaintiffs’ motion
to vacate. Preliminarily, the court noted that the relevant proofs
of service indicated that both plaintiffs had been served by mail
at Mireskandari’s home address in Encino. Mireskandari did not
contest the accuracy of this address, and Goshgarian had
submitted a declaration in support of its motion to be relieved as
counsel stating that the firm had been directed to provide all
communications to Baxendale-Walker at Mireskandari’s home
address. Accordingly, the court “regards notice accomplished
upon Mireskandari’s address as likewise accomplished on
Baxendale-Walker.”
The court further found that both plaintiffs had notice of
the February 7, 2017 status conference. The court noted that
Goshgarian had filed proofs of service on plaintiffs of the order
relieving Goshgarian as counsel and notifying plaintiffs of the
February status conference. Seyfarth likewise served a case
management statement on plaintiffs indicating the date of the
status conferences. The court therefore concluded that plaintiffs’
representations that they did not receive those notices and did
not believe anything was required of them during the stay “are
not credible.”5
5 Plaintiffs assert that the trial court’s conclusion that
plaintiffs’ sworn statements were not credible “cannot stand”
because it is “both factually erroneous and represents a value
judgment about [plaintiffs].” In fact, it was wholly within the
trial court’s province to decide whether to credit plaintiffs’
representations that they had not received any of the documents
8
The court found it was “less clear” whether plaintiffs had
notice of the order to show cause set for October 12, 2017. The
court noted that Seyfarth had conceded that, although it had
been ordered to give notice of the October 12 hearing, it could not
locate a proof of service of such notice. And, although Marks had
served a notice of telephonic appearance on October 3, 2017, and
Novak had served a case management statement on
September 28, 2017, both of which were served on plaintiffs,
neither notice mentioned the order to show cause. The court
therefore was “doubtful that that general notice afforded to
Plaintiffs with the order granting their former attorneys relief, to
the effect that failure to attend hearings could result in
dismissal, is sufficient in light of this scant notice.”
Notwithstanding the arguable lack of notice to plaintiffs
that the court would consider dismissing their claims at the
October 12, 2017 hearing, the court concluded plaintiffs were not
entitled to have the dismissal vacated under section 473(b) and
(d). First, the court found the dismissal order was not void, and
thus was not subject to being set aside under section 473(d),
because the court “ ‘had fundamental jurisdiction over the parties
and the subject matter.’ ” Second, the court found plaintiffs were
not entitled to relief under section 473(b) because they had not
moved to vacate the dismissal within a reasonable time. The
court explained: “A party moving for relief under section 473
must ‘show diligence in filing its application under section 473
with which they had been served. (See McClain v. Kissler (2019)
39 Cal.App.5th 399, 418.) Although plaintiffs denied receiving
notice of the various rulings in this case, “the trial court was not
obliged to believe [them].” (See Solv-All v. Superior Court (2005)
131 Cal.App.4th 1003, 1008.)
9
after learning about the default. If there is delay in filing for
relief under section 473, the reason for the delay must be
substantial and must justify or excuse the delay.’ [Citation.]
‘Delays of three months or more routinely result in denial of relief
where is no explanation for the delay.’ [Citation.] Here,
dismissal was entered against Plaintiffs on October 12, 2017, and
notice of that ruling was provided soon after. Yet plaintiffs filed
the present motion only on April 10, 2018, mere days away from
the six-month deadline, and have provided nothing in their
motion to indicate why this delay was reasonable.” Accordingly,
the court “exercises its discretion in finding this near six-month
delay to be unreasonable.”
Plaintiffs timely appealed from the order denying the
motion to vacate.6
DISCUSSION
Plaintiffs contend: (1) the order dismissing plaintiffs’
complaint was void as matter of law, and thus the trial court
erred in denying plaintiffs’ motion under section 473(d); and
(2) plaintiffs sought relief from the order of dismissal within a
reasonable time, and thus the trial court abused its discretion by
denying plaintiffs relief under section 473(b). As we discuss,
neither contention has merit.
6 An order denying a section 473 motion is an appealable
order. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019)
32 Cal.App.5th 166, 171 [“ ‘in cases where the law makes express
provision for a motion to vacate such as under Code of Civil
Procedure section 473, an order denying such a motion is
regarded as a special order made after final judgment and is
appealable under [the predecessor to section 904.1(a)(2)]’ ”].)
10
I.
Plaintiffs Were Not Entitled to Relief
Under Section 473(d)
Under section 473(d), a trial court “may . . . set aside any
void judgment or order.” (§ 473, subd. (d).) By its plain terms,
this provision grants a trial court the discretion to set aside a
judgment or order at any time “if that judgment or order is
‘void.’ ” (People v. North River Insurance Co. (2020)
48 Cal.App.5th 226, 232 (North River); Nixon Peabody LLP v.
Superior Court (2014) 230 Cal.App.4th 818, 822 (Peabody).)
“Voidness is a legal question we review de novo; the discretionary
decision whether to set aside a void judgment or order is . . .
reviewed solely for an abuse of that discretion.” (North River, at
p. 232; Peabody, at p. 822.)
“A judgment is ‘void’ only when the court entering that
judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the
‘ “entire absence of power to hear or determine the case” ’
resulting from the ‘ “absence of authority over the subject matter
or the parties.” ’ (People v. American Contractors Indemnity Co.
(2004) 33 Cal.4th 653, 660 (American Contractors), quoting
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287,288
(Abelleira).) To be sure, a court that ‘ “ ‘acts contrary to [its]
authority’ ” ’ ‘ “to give certain kinds of relief, or to act without the
occurrence of certain procedural prerequisites” ’ is often said to
lack ‘jurisdiction.’ (American Contractors, at p. 661, quoting
Abelleira, at pp. 288, 290.) But such acts do not render the
court’s ensuing judgment or order void. That is because
‘jurisdictional errors can be of two types[:] A court can lack
fundamental authority over the subject matter, question
presented, or party, making its judgment void, or it can merely
11
act in excess of its jurisdiction or defined power, rendering the
judgment voidable.’ (In re Marriage of Goddard (2004)
33 Cal.4th 49, 56.) Only void judgments and orders may be set
aside under section 473, subdivision (d); voidable judgments and
orders may not.” (North River, supra, 48 Cal.App.5th at pp. 233–
234, italics added.)
Plaintiffs contend the order dismissing the complaint was
void, and thus was subject to being set aside under section 473(d),
because it was entered at a hearing of which they did not have
notice. The Court of Appeal rejected a similar contention in Lee
v. An (2008) 168 Cal.App.4th 558 (Lee), concluding that the
absence of notice of a hearing rendered a judgment voidable, not
void. In Lee, the plaintiffs provided the defendant with notice of
an upcoming case management conference, but did not advise the
defendant that failing to appear could result in sanctions. The
defendant did not appear at the case management conference or
at another hearing several months later. The trial court
therefore struck the defendant’s answer and, subsequently,
entered a default and default judgment. (Id. at pp. 561–562.)
Thereafter, the defendant moved under section 473 to set aside
the default and default judgment, urging that she had not
received notice the court was considering imposing terminating
sanctions. The trial court denied the defendant’s motion, and the
defendant appealed. (Id. at pp. 562–563.)
The Court of Appeal affirmed, concluding that the
judgment at issue was voidable, not void. The court explained
that the distinction between void and voidable orders “is
frequently framed in terms of the court’s jurisdiction.
‘Essentially, jurisdictional errors are of two types. “Lack of
jurisdiction in its most fundamental or strict sense means an
12
entire absence of power to hear or determine the case, an absence
of authority over the subject matter or the parties.” [Citation.]
When a court lacks jurisdiction in a fundamental sense, an
ensuing judgment is void, and “thus vulnerable to direct or
collateral attack at any time.” [Citation.]’ [Citation.] For
example, if a defendant is not validly served with a summons and
complaint, the court lacks personal jurisdiction and a default
judgment in such action is subject to being set aside as void.
[Citation.] [¶] But when a statute authorizes a prescribed
procedure and the court acts contrary to the authority conferred,
the court exceeds its jurisdiction. [Citation.] ‘Errors which are
merely in excess of jurisdiction’ . . . generally are not subject to
collateral attack.” (Lee, supra, 168 Cal.App.4th at pp. 563–564.)
In the case before the Lee court, the plaintiffs had not given
the defendant notice that her answer could be stricken and her
default taken if she failed to appear for the case management
conference. The Court of Appeal thus concluded that the
trial court had erred by entering defendant’s default. But
because the court had personal jurisdiction over the parties and
subject matter jurisdiction over the action, the resulting default
and default judgment were “voidable, not void.” The defendant
therefore was not entitled to relief under section 473(d). (Lee,
supra, 168 Cal.App.4th at pp. 565, 566.)
The present case is analogous to Lee. Here, although the
plaintiffs had notice of their attorneys’ withdrawal and of the
February 7, 2017 status conference, the trial court found it “less
clear whether Plaintiffs [could] be regarded as having notice of
the OSC re Dismissal set for October 12, 2017.” As such, the
October 12, 2017 dismissal order arguably was voidable because
it may have been entered without proper notice to plaintiffs. (See
13
Lee, supra, 168 Cal.App.4th at p. 565.) However, because the
trial court indisputably had jurisdiction over the parties and the
subject matter, the dismissal order was not void. The trial court
thus correctly concluded the order could not be vacated under
section 473(d).
Plaintiffs acknowledge the holding in Lee, but they contend
the present case is distinguishable because “in Lee, the party
seeking relief waited two years before acting” and “[had] received
a copy of the default judgment and notice of the case
management conference.” The first supposed distinction is
immaterial: While the length of the delay is relevant for some
purposes, it is wholly irrelevant to whether the underlying order
is void. And the second supposed distinction does not exist at all:
In the present case, as in Lee, the plaintiffs had notice of the
relevant hearing, although they arguably did not have notice that
their claims could be dismissed at that hearing.
Plaintiffs further contend that we should adopt the court’s
analysis in Reid v. Balter (1993) 14 Cal.App.4th 1186 (Reid),
which they urge is contrary to Lee’s. Not so. In Reid, the trial
court dismissed plaintiffs’ complaint after the plaintiffs failed to
attend a status conference; the plaintiffs subsequently moved to
vacate the dismissal, and the trial court granted the motion. The
case then proceeded to trial, where the plaintiffs obtained a
judgment of $50,000. (Id. at p. 1190.) The defendants appealed
from the judgment, asserting, among other things, that the trial
court erred in vacating the judgment of dismissal. (Id. at
pp. 1193–1194.) The Court of Appeal affirmed, concluding that
the trial court had properly vacated the dismissal because it was
“void.” (Ibid.)
14
Plaintiffs cite Reid for the proposition that a dismissal
entered without notice is void, and therefore it must be vacated
under section 473(d). But as defendants correctly note, there is
no indication that the court in Reid considered the difference
between “void” and “voidable” orders, and we thus decline to read
Reid to stand for the proposition that an order entered at a
hearing of which a party did not have notice is void, rather than
voidable. In any event, were Reid to have held that an order
entered without notice is void, we would decline to follow it as
contrary to the weight of authority. (See, e.g., Johnson v. E-Z
Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98 [judgment
entered as the result of a terminating sanction issued on an
ex parte basis was voidable, not void]; Airs Aromatics, LLC v.
CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th
1013, 1022 [“When a court merely acts in excess of jurisdiction,
the judgment is only voidable, meaning the error is generally not
subject to collateral attack”]; Lee v. An, supra, 168 Cal.App.4th
558; see also Machado v. Myers (2019) 39 Cal.App.5th 779, 797–
798 [appellants were not entitled to relief under section 473(d),
from a judgment inconsistent with the terms of a settlement
agreement: “The trial court had authority over the subject
matter, the question presented, and the parties, yet acted in
excess of its defined power by entering a judgment inconsistent
with the terms of the settlement. Thus, there is no basis to
conclude the judgment is void, rather than voidable”].)
Next, plaintiffs urge, citing Ramos v. Homeward
Residential, Inc. (2014) 223 Cal.App.4th 1434 (Ramos) and
Calvert v. Al Binali (2018) 29 Cal.App.5th 954 (Calvert), that a
default judgment entered without notice to a party is void. But
neither Ramos nor Calvert stands for the broad proposition
15
plaintiffs assert. In both of the cited cases, the plaintiff failed to
properly serve the defendant with a summons and complaint; the
default judgments therefore were void because the courts never
acquired personal jurisdiction over the plaintiffs. (Ramos, at
pp. 1436–1437; Calvert, at pp. 960–962.) In the present case, in
contrast, it is undisputed that defendants were properly served
with the summons and complaint and had appeared in the action,
and thus the court had fundamental jurisdiction over the parties.
Finally, plaintiffs urge that service on Baxendale-Walker, a
foreign party, was invalid because it “violate[d] the spirit of the
Hague Convention.” Plaintiffs raise this issue for the first time
in the appellants’ reply brief, and thus we decline to address it on
the merits. (See Heiner v. Kmart Corp. (2000) 84 Cal.App.4th
335, 351 [declining to “spend any judicial resources” on issue
raised for the first time in appellant’s reply brief, which thus had
been “doubly waived”].)
For all of these reasons, the order of dismissal entered by
the trial court was, at most, voidable, not void. As such, the trial
court properly refused to set aside the dismissal under
section 473(d).
II.
The Trial Court Did Not Abuse its Discretion
by Denying Relief Under Section 473(b)
In the alternative, plaintiffs urge the trial court abused its
discretion by denying their request for discretionary relief under
section 473(b). Under that section, the trial court “may, upon any
terms as may be just, relieve a party . . . from a judgment,
dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable
neglect.” (§ 473, subd. (b).)
16
An application for discretionary relief under section 473(b)
must “be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was
taken.” (§ 473, subd. (b), italics added.) What constitutes a
“reasonable time” to move for relief depends upon the particular
circumstances of the case, but it is well-established that a delay
is unreasonable as a matter of law “when it exceeds three months
and there is no evidence to explain the delay.” (Minick v. City of
Petaluma (2016) 3 Cal.App.5th 15, 34; see also Stafford v. Mach
(1998) 64 Cal.App.4th 1174, 1184 [reversing trial court’s order
granting relief from default judgment and finding abuse of
discretion where inadequate explanation was provided for four-
month delay]; Huh v. Wang (2007) 158 Cal.App.4th 1406,
1421−1422 [no abuse of discretion in denying relief where
appellant delayed more than three months in moving for relief
without explanation]; Benjamin v. Dalmo Mfg. Co. (1948)
31 Cal.2d 523, 532 [“[t]o hold . . . that in the absence of any
explanation a delay of more than three months in undertaking to
open a default can be excused . . . would empower the trial court
to dispense with the ‘reasonable time’ requirement of the
statute”].) In general, “the longer the delay in bringing the
motion, the more substantial the justification for the delay must
be in order for relief to be appropriately granted” under section
473(b). (Stafford v. Mach, at p. 1185.)
“ ‘A ruling on a motion for discretionary relief under section
473 shall not be disturbed on appeal absent a clear showing of
[an] abuse’ ” of discretion. (Zamora v. Clayborn Contracting
Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora); accord, Austin v.
Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929
(Austin).) We defer to the trial court’s factual findings made in
17
the exercise of its discretion in reviewing the court’s ruling
granting or denying discretionary relief under section 473(b).
(Zamora, supra, at p. 258 [“ ‘ “where there is a substantial
conflict in the facts stated, a determination of the controverted
facts by the trial court will not be disturbed” ’ ”]; Fernandes v.
Singh (2017) 16 Cal.App.5th 932, 940 [“we defer to the trial
court’s resolution of any factual conflicts in the declarations”].)
In the present case, Seyfarth submitted evidence that it
served notice of dismissal of plaintiffs’ claims on both plaintiffs on
October 13, 2017, and notice of dismissal of Seyfarth’s own claims
(which also referred to the court’s prior dismissal of plaintiffs’
claims) on November 3, 2017. The trial court credited this
evidence, finding that plaintiffs were provided notice of the
dismissal “soon after” it was entered. Plaintiffs did not seek to
vacate the dismissal for nearly six months—a delay for which
they provided no justification. The court thus was well within its
discretion in concluding that plaintiffs did not act diligently in
seeking relief under section 473.
On appeal, plaintiffs suggest that their delay was
reasonable because they did not learn of the dismissal until
March 2018, shortly before they filed their section 473 motion.
Neither plaintiff made such a representation in his declaration,
however; to the contrary, although each plaintiff said he was
“surprise[d]” when he was “recently” forwarded a copy of the
court’s dismissal order, neither said he had not received service of
the notice of dismissal in October 2017, and neither indicated the
date on which he first learned that his case had been dismissed.
Further, although plaintiffs’ attorney, Stacy Zill, stated that she
discovered the dismissal less than 30 days before she filed the
section 473 motion, she manifestly was not competent to testify
18
that plaintiffs had not known of the dismissal months earlier.
There thus is no support in the record for plaintiffs’ assertion on
appeal that “[b]oth Plaintiffs swore under oath that they did not
receive prior notices and that they did not know of the default
until March 2018.”
For all of these reasons, it was well within the trial court’s
discretion to conclude that plaintiffs had been aware of the
dismissal of their claims no later than October 2017 and, by
waiting almost six months before seeking relief, had failed to act
within a reasonable time.
19
DISPOSITION
The order denying plaintiffs’ motion to vacate is affirmed.
Respondents are awarded their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
20