1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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,

v.

SHAKIRULLAH LODIN,

Defendant and Respondent.

 A163918

 (Alameda County

 Super. Ct. No. RG19017210)

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 
2

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, 

1 Sarwari’s counsel subsequently filed and served a “summary of 

counts.” 
3

surprise, and excusable neglect, pursuant to Code of Civil Procedure section 

473, subdivision (b) (§ 473(b)).2 The motion was set for hearing on October 

12, and was accompanied by a declaration from Frumkin, and a proposed 

order setting Lodin’s arraignment. 

At the October 12 hearing, the trial court heard testimony from 

Frumkin and from Lodin’s counsel. Based on Frumkin’s testimony and the 

declaration that he submitted with the motion to set aside, the following facts 

were established: On September 23, Frumkin took the train from 

Sacramento to Oakland and arrived at the courthouse by 8:30 a.m. He looked 

at a posted case calendar in the courthouse lobby and did not see his case

listed.

3 Frumkin called his client, who was not at the courthouse, and she 

told him she was not aware of a hearing. Frumkin then assumed he had 

made a mistake about the date of the hearing, and headed back to the train 

station just before 9 a.m. Frumkin testified that he never attempted to open 

the courtroom doors to Department 105, where the matter was set for 

hearing, and did not go up to the fourth floor of the building, where the 

courtroom was located; that he did not call the court to ask about the hearing; 

and that he did not attempt to use the BlueJeans platform to contact the 

court. He testified that he was sitting outside the courthouse before he left 

for the train station, and did not see Lodin’s counsel while he was sitting 

there. At about 10:20 a.m., Frumkin received a message from his secretary, 

who reported that Lodin’s counsel had told her that the court could be calling 

2 All statutory references are to the Code of Civil Procedure.

3 Apparently, the case calendar that Frumkin reviewed, which was in 

the lobby of the courthouse, listed only criminal cases. Department 105, 

where the matter was set for hearing, was the only civil department in the 

courthouse, and the calendar for that department was posted outside the 

Department 105 courtroom door. 
4

the case in 10 minutes. Frumkin could have returned to the courthouse at 

that point, but he could not have been there by 10:30. Frumkin instructed 

his secretary to have an associate contact Lodin’s counsel and ask Lodin’s 

counsel to tell the court that Frumkin could not appear at 10:30 and to ask 

the court to set the matter for trial on Sarwari’s behalf. At 10:35 a.m., 

Frumkin received a message from his associate stating that Lodin’s counsel 

“will tell the court you can’t make it and will set the matter.” 

Lodin’s counsel testified that he came into the courtroom a few minutes 

before 9:00 a.m. on September 23, and that just before he entered the 

building he saw Frumkin sitting outside, but he did not believe that Frumkin 

had noticed him, and he had speculated that Frumkin was waiting for his 

client. Lodin’s counsel testified that at about 10:20 that morning, when the 

court told him that the case would be called in 10 minutes, he called 

Frumkin’s office. He did not have Frumkin’s cell phone number, but he 

thought Frumkin was still outside the building and that Frumkin’s office 

could let him know to come up to the courtroom. Frumkin’s secretary said 

she would contact Frumkin; then Lodin’s counsel received a call from 

Frumkin’s associate telling him that Frumkin had left and asking him to ask 

the court to reset the matter to another date. When the matter was called, 

Lodin’s counsel relayed to the court that Frumkin had left and could not come 

back, and asked that the court reset the matter to another date. 

Lodin’s counsel further testified that the court had asked whether he 

consented or objected to the request for a new date, and that he responded by 

expressing “reservations,” and mentioning that he thought the application for 

contempt and the failure to appear at court were part of a pattern of

harassing his client. 
5

After hearing testimony from Frumkin and from Lodin’s attorney, the 

court noted that Frumkin and his client were present when the September 23 

hearing was set and that minutes from the August hearing had been sent 

out. The court found that on September 23 there were several ways for 

Frumkin to have determined that the matter was on calendar for that day, 

and that it was “outrageous” that Frumkin relied on the criminal case 

calendar posted downstairs at the courthouse and did not “even come into the 

courtroom, come to the department, open the door, call the department, email the department, get on Blue Jeans.” 

The court concluded that there was “no good reason” for Frumkin’s 

failure to be present in court on September 23, and denied Sarwari’s motion 

to set aside. Sarwari appealed. Lodin did not file a respondent’s brief, and 

oral argument was waived. Therefore, we shall decide the appeal on the 

record and Sarwari’s opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)

DISCUSSION

The Code of Civil Procedure authorizes the court to “relieve a party or 

his or her legal representative from a judgment, dismissal, order, or other 

proceeding taken against him or her through his or her mistake, 

inadvertence, surprise, or excusable neglect.” (§ 473(b).) “The common 

requirement is that the error must have been excusable. [Citation.] The 

standard is whether ‘ “a reasonably prudent person under the same or similar 

circumstances” might have made the same error.’ ” (Solv-All v. Superior 

Court (2005) 131 Cal.App.4th 1003, 1007.) 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.’ ” (Ibid.)
6

The Code of Civil Procedure also provides for mandatory relief for a 

party from a “default entered by the clerk . . . which will result in entry of a 

default judgment,” or from a “default judgment or dismissal.” (§ 473(b).) 

Mandatory relief is available if “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.” (Ibid.) If the prerequisites for the 

mandatory provision of section 473(b) have been met, the trial court has no 

discretion to refuse relief. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 

393, 399.) If, as is the case here, the underlying facts are not in dispute, the 

issue of mandatory relief presents a question of law and is subject to de novo 

review. (Ibid.) 

Sarwari argues that the trial court’s finding that Frumkin acted 

unreasonably in failing to appear on September 23 is not supported by 

substantial evidence, and that therefore the trial court abused its discretion 

in denying Sarwari’s motion. We disagree. There was evidence that Sarwari 

and Frumkin were present at the August hearing when the court set the 

arraignment for September 23 and that minutes of the August hearing were 

served on Sarwari. There was evidence that Frumkin arrived at the 

courthouse from Sacramento about 90 minutes before the arraignment was 

set; that Frumkin checked a calendar in the lobby of the courthouse and did 

not see his matter listed; and that Frumkin left the courthouse to return to 

Sacramento more than an hour before the arraignment was set without going

to the specific courtroom where the matter had been noticed for hearing and 

without attempting to contact the court to determine the status of the 

hearing. 
7

The trial court could determine that after not seeing Sarwari’s case 

listed on a calendar in the courthouse lobby, a reasonably prudent person in 

Frumkin’s position on the morning of September 23 would have gone to the 

courtroom or attempted to contact the court before assuming that the hearing 

would not take place and leaving the vicinity. We are not at all persuaded by 

Sarwari’s contention that the trial court’s finding that Frumkin acted 

unreasonably was an abuse of discretion in the absence of evidence that 

“reasonable persons would call the department, email the department, try the 

door to the department, etc.” 

Sarwari argues in the alternative that the trial court was required to 

grant her request for relief from the dismissal order under the mandatory 

provision of section 473(b).4 We reject this argument because the “dismissal” 

at issue in this case is not a “dismissal” for the purposes of the mandatory 

provision. 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. (Noceti v. Whorton (2014) 224 Cal.App.4th 1062, 1065-1066 

[explaining the basis of the narrow construction of “dismissal” in the 

mandatory provision, in contrast to the broad construction of the term in the 

discretionary provision]; Weil et al., Cal. Practice Guide: Civil Procedure

Before Trial (The Rutter Group 2022) ¶ 5:299.2 [“[r]elief is mandatory only 

from those dismissals which are the ‘procedural equivalent of a default’ ”].) 

This is not a case in which a plaintiff failed to respond to a dismissal motion, 

nor is this anything like a default. Instead, because of attorney neglect, 

4 Although Sarwari’s motion to set aside asked for relief from the 

dismissal under the discretionary provision of section 473(b), in the course of 

the hearing, her counsel asked the court to set aside the dismissal under the 

mandatory provisions of section 473(b). The trial court declined to do so. 
8

Sarwari and her attorney failed to appear for a hearing on her application for 

contempt, and the court “dropped” her application for an order to show cause 

from the calendar in light of the failure to appear. 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. 

In sum, we conclude that Sarwari failed to show error by the trial 

court. But even if she had, we would not reverse the trial court’s order 

because in addition to showing error, an appellant must show prejudice from 

the error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) 

The California Constitution permits reversal only if “the error complained of 

has resulted in a miscarriage of justice.” (Cal. Const., Art. VI, § 13.) And the 

Code of Civil Procedure provides that appealed judgments and orders may be 

reversed only if the record shows that an error was “prejudicial”; the error 

caused appellant “substantial injury”’ and absent the error “a different result 

would have been probable.” (§ 475.) Sarwari, however, does not even 

attempt to show prejudice in her appellate brief; in particular, she makes no 

attempt to show that she suffered any substantial injury from the trial court 

order “dropping” her application. And we are hard pressed to see how she 

could have been substantially injured or prejudiced, in view of Sarwari’s own 

characterization of the order as a dismissal “without prejudice,” and the trial 

court’s statement that Sarwari could always file a new application. 

DISPOSITION

The challenged order is affirmed.
9

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, Acting P.J.

_________________________

Mayfield, J.*

A163918, Sarwari v. Lodin

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.