DeVie vs. County of Orange

“Because 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.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute, on other grounds, as discussed in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64.)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.” (Ibid.)

Nonetheless, the requirement that the judgment or order have been entered through “inadvertence, surprise, excusable neglect, or mistake” is “not meaningless, and the party requesting such relief must affirmatively show that the situation is one which clearly falls within such category.” (In re Wolper’s Estate (1956) 146 Cal.App.2d 249, 251.)

Thus, in a motion to set aside a default judgment or order under Section 473(b), the initial burden is on the moving party to prove mistake, inadvertence, surprise, or excusable neglect by a “preponderance of the evidence.” (Kendall v. Baker (1988) 197 Cal.App.3d 619, 624.)

In addition, a motion for relief from default may also be based upon “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).)

Where the attorney provides the declaration described in Section 473(b), relief from default 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.” (Ibid.; see Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623 [trial court could deny a motion for mandatory relief if it finds the attorney’s declaration lacked credibility].)

As the Court of Appeal has explained:

To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.

(Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; see also Benedict v. Danner Press (2001) 87 Cal.App.4th 87 Cal.App.4th 923, 927 [“Relief under the mandatory provision is available whether or not the attorney’s neglect is excusable.”].)

“While not every mistake of an attorney constitutes excusable neglect (see, for example, cases cited in 3 Witkin, Cal. Procedure (1954) 2108), calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.” (Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 980-981; see also Bouvett v. Layer (1940) 40 Cal.App.2d 43, 47 [court properly granted relief pursuant to Section 473 where counsel entered wrong date for hearing on motion and this

mistake caused counsel to miss hearing].)

Prior Proceedings

On August 7, 2025, the Court ordered the entire action dismissed without prejudice, following Plaintiffs’ failure to appear at the hearing on the Order to Show Cause re:” Sanctions/Dismissal for Failure to Serve. (See ROA #28.)

Plaintiffs moved within six months to set aside that dismissal. (See ROA # 41.)

In support of their request to set aside the dismissal, Plaintiffs submit an attorney declaration showing that the dismissal was entered as a result of Plaintiff’s Counsel Michael L. Guisti’s mistake, inadvertence, surprise, and/or neglect because Counsel was ill and failed to appear at the hearing on time. (See Combined Decl. of Michael L. Guisti, ¶¶ 19-26.)

Plaintiff shall give notice of this ruling when Plaintiff serves named Defendants.

13 Lee vs. Motion for Summary Judgment and/or Summary Adjudication Volkswagen Group of Defendants Volkswagen Group of America, Inc.’s and Audi South Coast’s America, Inc. Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication is DENIED.

30-2024- Defendants Volkswagen Group of America, Inc.’s and Audi South Coast’s 01445104 evidentiary objections to the Declaration of Plaintiff Paul B. Lee are OVERRULED as to evidentiary objection numbers 1-6.

Defendants Volkswagen Group of America, Inc.’s and Audi South Coast’s evidentiary objection to the Declaration of Timothy F. Fatone is SUSTAINED as to evidentiary objection number 1.

Pending Motion

Defendants Volkswagen Group of America, Inc. and Audi South Coast move for summary judgment as to Plaintiff Paul B. Lee’s Complaint for Damages Based on Violations of the Song-Beverly Consumer Warranty Act (Complaint).

In the alternative, Defendants move for summary adjudication as to the 1st and 2nd Causes of Action of the Complaint.

Timeliness of Motion

The Civil Procedure Code requires that a party moving for summary judgment or summary adjudication give notice of the motion by personal service at least 81 days before the hearing on the motion. (See Code Civ. Proc., § 437, subd. (a)(2).)