Filed 10/3/23 The Little Red Dog v. Mayeda CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE LITTLE RED DOG, INC., 

Plaintiff and Appellant,

v.

MARCIA MAYEDA, as Director, etc.,

Defendant and Respondent.

 B324244

 (Los Angeles County

 Super. Ct. No. 21STCP00975)

APPEAL from an order of the Superior Court of 

Los Angeles County. Mary H. Strobel, Judge. Affirmed.

Huston McCaffrey and Shawn P.K. Huston for Plaintiff and 

Appellant.

Carpenter, Rothans & Dumont, Jill Williams and Kimberly 

Morosi for Defendant and Respondent.

______________________________
2

Appellant The Little Red Dog, Inc. (the rescue), challenges 

the trial court order denying its ex parte application for relief 

pursuant to Code of Civil Procedure section 473.1 Because the 

trial court did not abuse its discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Factual background

Respondent Marcia Mayeda, Director of the Los Angeles 

County Department of Animal Care and Control (DACC) operates 

animal shelters for domestic animals. As part of its programs, 

DACC administers an adoption partner program, through which 

it partners with independent nonprofit animal rescues and 

adoption organizations that assist in finding homes for animals. 

The rescue is an animal rescue organization that was previously 

an adoption partner.

In March 2020, one of the rescue’s dogs bit its foster parent, 

and, according to DACC, the rescue tried to conceal the incident 

from DACC. Following an investigation and administrative 

hearing, DACC revoked the rescue’s status as an adoption 

partner.

The rescue files a petition for writ of mandate and a briefing 

schedule is set

On March 29, 2021, the rescue filed a petition for writ of 

mandamus challenging DACC’s decision. At the July 8, 2021, 

trial setting conference, the trial court set forth a briefing 

schedule: The rescue’s brief was due March 25, 2022; DACC’s 

opposition was due April 22, 2022; and the trial was scheduled 

for May 24, 2022.

1

All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

Settlement discussions

In July 2021, the parties discussed the possibility of 

settling, but did not reach an agreement. Between December 16, 

2021, and February 16, 2022, the parties exchanged e-mails 

regarding a potential settlement, but again failed to reach any 

such agreement.

The rescue fails to file an opening brief

Even though the rescue’s opening brief was due March 25, 

2022, it did not either file a brief or request a continuance. On 

April 22, 2022, the date that DACC’s opposition was due, DACC 

filed a notice of the rescue’s failure to file an opening brief and a 

request for dismissal.

The rescue attempts to resume settlement discussions

On May 12, 2022, the rescue contacted DACC, seeking to 

resume settlement discussions and, for the first time, sent a draft 

settlement agreement. Without withdrawing its request for a 

dismissal or agreeing to a continuance, DACC engaged in further 

settlement discussions. DACC ultimately rejected the rescue’s

proposed settlement agreement and advised the rescue that it did 

not appear that the parties would be able to reach a settlement.

The rescue files an ex parte application requesting a continuance 

of the hearing and briefing deadlines; trial court order

On May 23, 2022, the day before trial, the rescue filed an 

ex parte application requesting a continuance of the hearing and 

of the brief filing dates. The trial court denied the rescue’s

application, finding that the rescue had failed to demonstrate 

good cause and failed to request the continuance as soon as it 

became evident that one was necessary. In addition, although 

the rescue’s application did not seek relief pursuant to section 

473, subdivision (b), the trial court analyzed that issue and found 
4

that the rescue had failed to make a showing of excusable neglect 

to merit relief.

Judgment; the rescue’s appeal; dismissal of the appeal

Because the rescue failed to file an opening brief or lodge 

the administrative record, the trial court concluded that it did not 

meet its burden of proof. Accordingly, it denied the rescue’s 

petition for writ of mandate. A judgment of dismissal was 

entered, and the superior court clerk served notice of entry of 

judgment on the parties on June 30, 2022.

On August 30, 2022, the rescue filed a notice of appeal from 

the judgment of dismissal. (The Little Red Dog v. Director of 

Los Angeles County Animal County Animal Care & Control, 

B323074.) On September 27, 2022, we dismissed that appeal, 

reasoning: “The notice of appeal filed on August 30, 2022 was 

untimely as to the June 30, 2022 judgment from which the appeal 

was taken. Moreover, no appeal was taken from the trial court’s 

denial of the appellant’s motion for relief under Code of Civil 

Procedure Section 473 which was separately appealable. 

Accordingly, the notice of appeal filed August 30, 2022 is 

dismissed as untimely.” (The Little Red Dog v. Director of 

Los Angeles County Animal County Animal Care & Control, 

B323074.)

The rescue’s ex parte application seeking reconsideration and 

relief pursuant to section 473; trial court’s order; appeal

On August 26, 2022, the rescue filed an ex parte 

application seeking (1) reconsideration of the denial of its request 

for a continuance of the trial, (2) reconsideration of the denial of 

relief pursuant to section 473, subdivision (b), and (3) relief 

pursuant to section 473, subdivision (b). The trial court denied 

the rescue’s requests for reconsideration as untimely and denied 
5

the request for section 473, subdivision (b), relief for the same 

reasons set forth in its May 23, 2022, order.

On October 17, 2022, the rescue filed a notice of appeal 

from “[a]n order, after judgment, denying plaintiff’s motion for 

relief pursuant to 473(b).”2

DISCUSSION

I. Standard of review

As the parties agree, we review the trial court’s order 

denying relief pursuant to section 473 for abuse of discretion. 

(Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 

313, 319.) We review any subsidiary factual findings for 

substantial evidence. (Zamora v. Clayborn Contracting Group, 

Inc. (2002) 28 Cal.4th 249, 257–258.)

Appellant “‘correctly observe[s] that a trial court order 

denying relief under section 473, subdivision (b) is “‘scrutinized 

more carefully than an order permitting trial on the merits.’” 

[Citation.] “Because the law favors disposing of cases on their 

merits, ‘any doubts in applying section 473 must be resolved in 

favor of the party seeking relief from default [citations].’” 

[Citation.] But that said, “[a] motion to vacate a default and set 

2

The rescue’s appeal is limited to this issue. (Soldate v. 

Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 

1073 [“‘Our jurisdiction on appeal is limited in scope to the notice 

of appeal and the judgment or order appealed from’”].) To the 

extent the appellate briefs suggest that the rescue is challenging 

either the trial court’s denial of its application for reconsideration 

or the judgment, its arguments fail. The appeal from the 

judgment was dismissed. The order denying the request for a 

continuance is not separately appealable. And, the order denying 

reconsideration is not appealable or reviewable in this context. 

(§ 1008, subd. (g).)
6

aside judgment (§ 473) ‘is addressed to the sound discretion of the 

trial court, and in the absence of a clear showing of abuse . . . the 

exercise of that discretion will not be disturbed on appeal.’ 

[Citations.] Moreover, all presumptions will be made in favor of 

the correctness of the order, and the burden of showing abuse is 

on the appellant.”’ [Citation.]” (McClain v. Kissler (2019) 

39 Cal.App.5th 399, 413.)

II. Relevant law

Section 473, subdivision (b), “provides ‘two distinct 

provisions for relief’ from default or dismissal. [Citation.] One 

affords discretionary relief, and the other makes relief 

mandatory.” (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 

32 Cal.App.5th 166, 173.)

The discretionary relief provision provides, in relevant part 

that the trial court “may, upon any terms as may be just, 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, subd. (b), italics added.) “The party seeking 

relief . . . bears the burden of proof in establishing a right to 

relief,” including a satisfactory excuse for the default. (Hopkins 

& Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) “Where ‘“a 

party fails to show that a judgment has been taken against him 

through his mistake, inadvertence, surprise or excusable neglect 

the court may not grant relief. It has no discretion.”’ [Citation.]” 

(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.)

Within the context of section 473, subdivision (b), mistake 

and neglect are excusable if a reasonably prudent person under 

similar circumstances might have made the same error. 

(McClain v. Kissler, supra, 39 Cal.App.5th at p. 414.)
7

In contrast, the mandatory relief provision provides, as 

pertinent: “Notwithstanding any other requirements of this 

section, 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 (1) resulting default entered by the clerk against his 

or her client, and which will result in entry of a default judgment, 

or (2) resulting default judgment or dismissal entered against his 

or her client.” (§ 473, subd. (b), italics added.)

III. The trial court did not abuse its discretion

Applying these legal principles, we conclude that the trial 

court did not err in denying the rescue relief pursuant to section 

473, subdivision (b).

A. No discretionary relief

The rescue was not entitled to discretionary relief because 

it did not establish mistake or neglect.

Urging us to conclude otherwise, the rescue argues that its 

failure to file an opening brief constitutes excusable neglect 

because it relied on settlement negotiations with DACC when it 

decided not to file the memorandum of points and authorities. 

But that was not a mistake or the result of excusable neglect; 

rather, the rescue made a conscious choice to disregard the courtordered filing deadline to save money. (McClain v. Kissler, supra, 

39 Cal.App.5th at p. 405 [failure to respond to the complaint was 

not the result of excusable mistake when the decision was 

knowing and deliberate].) Under these circumstances, relief is 

not available. (See Hearn v. Howard (2009) 177 Cal.App.4th 

1193, 1206 [“‘The only occasion for the application of section 473 

is where a party is unexpectedly placed in a situation to his 
8

injury without fault or negligence of his own and against which 

ordinary prudence could not have guarded.’ [Citation.].”)

To the extent the rescue did not file an opening brief 

because its “attorneys believed the parties would settle the case 

without the need to file the brief or go to trial,” the trial court 

acted well within its discretion in finding that this mistake was 

not excusable. After all, as pointed out by DACC, the parties 

went months without communicating about a settlement, and no 

drafts were exchanged until May 2022. (San Bernardino City 

Unified School District v. Superior Court (1987) 190 Cal.App.3d 

233, 239 [“If there had been mutual bona fide efforts to 

compromise and settle the action and petitioners had delayed 

bringing the cross-complaint to trial because of a reasonable 

belief induced by the nature of the negotiations that a trial could 

probably be avoided, denial of the motion could be an abuse of 

discretion. However, demands by one party for settlement and 

consistent denials of liability and refusals to offer anything in 

settlement by the other party do not amount to negotiations such 

as would excuse delay in prosecuting the cross-complaint”]; 

contra, Stephens v. Baker & Baker Roofing Co. (1955) 

130 Cal.App.2d 765, 771 [trial court abused its discretion in 

denying a plaintiff relief pursuant to section 473 from a dismissal 

entered for failure to prosecute when the evidence showed that 

the plaintiff acted diligently and “the undenied fact [was] that 

most of the delay in bringing the case to trial was due to 

plaintiff’s acquiescence in defendants’ requests”].)

Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 

26 Cal.App.5th 309 is readily distinguishable. In that case, 

“attorneys for [the] plaintiff . . . failed to file an opposition to a 

motion for summary judgment. They had been substituted into 
9

the case after [her] former attorneys were disqualified and the 

opposition that the former attorneys had filed was stricken. At 

the hearing on the motion, [the plaintiff’s] new counsel claimed 

they had not known that they needed to file a new opposition 

[and] requested relief from default under Code of Civil Procedure 

section 473, subdivision (b), and a continuance. The trial court 

found that new counsel’s failure was inexcusable neglect. It 

therefore granted summary judgment.” (Levingston v. Kaiser 

Foundation Health Plan, Inc., supra, at p. 311.) The Court of 

Appeal found that “due to her new counsel’s neglect—which the 

trial court quite properly found to be inexcusable—[the plaintiff] 

was not entitled to relief under Code of Civil Procedure section 

473, subdivision (b).” (Levingston v. Kaiser Foundation Health 

Plan, Inc., at p. 311.) She was, however, entitled to a 

continuance, partly because “there was no evidence that new 

counsel’s failure to file an opposition was willful.” (Id. at p. 318.)

Here, in contrast and as set forth above, the rescue’s failure 

to file an opening brief was admittedly deliberate. Thus, the trial 

court did not abuse its discretion in finding no good cause to 

grant the rescue’s request for a continuance. (Levingston v. 

Kaiser Foundation Health Plan, Inc., supra, 26 Cal.App.5th at 

p. 315.)

B. Public policy

The rescue further argues that public policy mandates 

reversal. “There is, to be sure, a policy in favor of trying cases on 

their merits. And it is an important one. But there are other 

policies reflected in the requirement of section 473(b) that relief 

be granted only where a party has made an honest and 

reasonable mistake, policies implicating judicial efficiency, a fair 

legal process and timely access to the courts.” (McClain v. 
10

Kissler, supra, 39 Cal.App.5th at p. 405.) In other words, the 

public policy in favor of resolving cases on their merits does not 

relieve a party seeking relief under section 473, subdivision (b), 

from the statutory requirement of demonstrating mistake, 

inadvertence, surprise, or excusable neglect.

C. No mandatory relief

Finally, the rescue was not entitled to mandatory relief 

under section 473, subdivision (b). The provision under section 

473 that allows for mandatory relief is limited to “defaults, 

default judgments, and dismissals.” (Henderson v. Pacific Gas & 

Electric Co. (2010) 187 Cal.App.4th 215, 228–229.) Here, the 

judgment entered against the rescue was not the result of a 

default.

Admittedly, the judgment was a dismissal. But that 

dismissal followed the rescue’s failure to file an opening brief, 

and the absence of such a brief constituted “an admission that 

the motion [was] not meritorious and” could be denied. 

(Cal. Rules of Court, rule 3.1113(a); § 1094; see also Noceti v. 

Whorton (2014) 224 Cal.App.4th 1062, 1068 [judgment following 

an uncontested trial was not tantamount to a dismissal].) Under 

these circumstances, the judgment was not a dismissal

commensurate with the “‘procedural equivalent of a default.’” 

(Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1148; see also 

Leader v. Health Industries of America, Inc. (2001) 

89 Cal.App.4th 603, 620 [“when the Legislature incorporated 

dismissals into section 473, subdivision (b) it intended to reach 

only those dismissals which occur through failure to oppose a 

dismissal motion—‘the only dismissals which are procedurally 

equivalent to a default’”; the purpose of the amendment was 

simply “‘“to put plaintiffs whose cases are dismissed for failing to 
11

respond to a dismissal motion on the same footing with 

defendants who are defaulted for failing to respond to an action.” 

[Citations.]’ [Citation.]”].) “[T]o read the mandatory provision of 

Code of Civil Procedure section 473 to apply whenever a party 

loses his or her day in court due to attorney error goes far beyond 

anything the Legislature has done.” (Yeap v. Leake (1997) 

60 Cal.App.4th 591, 605 (dis. opn. of Epstein, Acting P. J.).)

The Urban Wildlands Group, Inc. v. City of Los Angeles

(2017) 10 Cal.App.5th 993 (Urban Wildlands) is instructive. In 

that case, the plaintiff filed a petition for writ of mandate; both 

parties briefed the merits, but the plaintiff never lodged the 

administrative record. The trial court found in the defendant’s 

favor and entered judgment. The plaintiff then filed a motion for 

relief. The trial court granted mandatory relief under section 

473, subdivision (b), and the Court of Appeal reversed, reasoning 

that “[t]he judgment from which plaintiff [sought] relief [was] not 

a default, default judgment, or dismissal.” (Urban Wildlands, 

supra, at p. 996.) There was a trial on the merits—the plaintiff 

simply failed to present sufficient evidence by failing to lodge the 

administrative record and therefore did not meet its burden of 

proof. (Id. at p. 1002.) Thus, “[t]he judgment at issue [was] not a 

default, default judgment, or dismissal” and “[t]he trial court 

could not . . . grant mandatory relief under section 473, 

subdivision (b).” (Urban Wildlands, supra, at p. 1002; contra, Gee 

v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 491 [the 

plaintiff was entitled to mandatory relief because her case was 

dismissed for failure to pay change of venue fees and therefore 

was not a dismissal based on the merits].)

That analysis squarely applies here. The trial court had a 

trial on May 24, 2022. It found that the rescue did not meet its 
12

burden of proof because it failed to file an opening brief or lodge 

the administrative record. There was no judgment of dismissal 

warranting mandatory relief under section 473, subdivision (b).

DISPOSITION

The order is affirmed. DACC is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ