Filed 8/25/14 Minkoff v. County of Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 SEVEN

C. MICHAEL MINKOFF, JR. et al.,

Plaintiffs and Respondents,

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Appellants.

 B250218

 (Los Angeles County

 Super. Ct. No. BC447292)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary 

Ann Murphy, Judge. Reversed and remanded with directions.

Law Offices of David J. Weiss, David J. Weiss, Danielle F. Drossel; Pollak, Vida 

& Fisher, Daniel P. Barer and Anna L. Birenbaum for Defendants and Appellants.

Law Offices of Robert L. Howell and Robert L. Howell for Plaintiffs and 

Respondents.

________________________
2

INTRODUCTION

The County of Los Angeles and several employees or agents of the Department of 

Children and Family Services (collectively the County) appeal the trial court’s order 

vacating a dismissal of an action filed by Georgia residents C. Michael Minkoff, Jr., his 

wife Vanessa Minkoff, their minor children (collectively the Minkoffs), and C. Michael 

Minkoff’s parents, Michael Minkoff, Sr., and Deborah Minkoff. The trial court had 

ordered the Minkoffs to post an undertaking pursuant to Code of Civil Procedure 

section 1030.1 After the Minkoffs failed to post the undertaking within the 30 days 

required by the statute, the trial court granted the County’s motion to dismiss. Six 

months later, the trial court granted the Minkoffs’ motion to vacate the dismissal under 

the mandatory provision of section 473, subdivision (b). We reverse the trial court’s 

order, concluding that the mandatory provision of section 473, subdivision (b), does not 

apply to the trial court’s order dismissing this action for failure to post an undertaking 

pursuant to section 1030, and remand the case for the trial court to determine whether the 

Minkoffs are entitled to relief under the discretionary provision of section 473, 

subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

A. The Action

The Minkoffs, who reside in Sugar Hill, Georgia, alleged in their first amended 

complaint that when they came to visit Vanessa’s mother in Van Nuys in July 2009, 

Vanessa, who was pregnant, and Michael agreed that an “appropriate punishment” for 

their one and one-half-year-old daughter’s refusal to eat her eggs for breakfast was a 

 

1 Statutory references are to the Code of Civil Procedure.
3

“spanking with a bamboo spoon.”

2

 The Minkoffs “arrived at this decision based on their 

faith (members of the Presbyterian Church) and reading of child rearing literature, which 

recommended spankings with inanimate objects so that the child does not associate a 

parent[’]s hand with the spanking.” Michael “administered the spanking.” Michael and 

Vanessa “were surprised by the appearance of a bruise” on their daughter the next day.

Vanessa’s mother apparently was surprised, too, and concerned. After the 

Minkoff family had left for the airport to return to Georgia, she called the police because 

“she felt being a school teacher that she was a mandated reporter.” Officers from the Los 

Angeles Police Department arrived, called Michael en route to the airport and told him 

not to leave, and then met the family at a bus depot. The officers arranged to transport 

the children to the hospital and called the Department of Children and Family Services 

(DCFS). DCFS detained the children and placed them in the home of Vanessa’s mother.

Thus began the Minkoffs’ four-month odyssey in California’s dependency court 

system. There were extensive proceedings in the dependency court from July to 

November 2009, most of which are not relevant to this appeal.3 The juvenile court 

ultimately dismissed the petition without prejudice on November 2, 2009, and the 

Minkoffs returned to Georgia with their children.

The Minkoffs filed this action in October 2010 against the County of Los Angeles 

and nine employees or agents of DCFS. The Minkoffs asserted causes of action for 

 

2 Because the parties “share the same last name, we refer to them by their first 

names for convenience and clarity” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 

1187, 1191, fn. 1) and not out of disrespect (Farmers New World Life Ins. Co. v. Rees

(2013) 219 Cal.App.4th 307, 310, fn. 1).

3 The Minkoffs alleged that there was a detention hearing on July 30, 2009, a 

meeting with DCFS on August 3, 2009, an adjudication hearing on August 24, 2009, a 

pretrial resolution conference on September 30, 2009, and a further adjudication hearing 

on November 2, 2009. The Minkoffs allege they were ordered to participate in parenting 

classes, receive counseling, and have monitored visits with their children, and that they 

had to retain counsel. The Minkoffs also allege that DCFS contacted Child Protection 

Services in Gwinnet County, Georgia, where the Minkoffs live.
4

violation of their civil rights, “Monell4related claims,” intentional and negligent 

infliction of emotional distress, and injunctive relief. The Minkoffs alleged that Michael 

lost his teaching job in Georgia because he had to remain in California for the 

dependency court proceedings, and that the extended stay in California away from 

Vanessa’s physicians in Georgia had an adverse effect on her pregnancy.

B. The Motion for an Undertaking

The County filed a motion pursuant to section 1030 for an order requiring the 

Minkoffs, as out-of-state plaintiffs, to file an undertaking in the amount of $35,275 to 

secure an award of costs. Section 1030, subdivision (a), provides: “When the plaintiff in 

an action or special proceeding resides out of the state, or is a foreign corporation, the 

defendant may at any time apply to the court by noticed motion for an order requiring the 

plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may 

be awarded in the action or special proceeding.” Section 1030, subdivision (b), requires 

the moving defendant to show that “the plaintiff resides out of the state or is a foreign 

corporation and that there is a reasonable possibility that the moving defendant will 

obtain judgment in the action or special proceeding.” The purpose of section 1030 “‘is to 

enable a California resident sued by an out-of-state resident “‘to secure costs in light of 

the difficulty of enforcing a judgment for costs against a person who is not within the 

court’s jurisdiction.’” [Citation.] The statute therefore acts to prevent out-of-state 

residents from filing frivolous lawsuits against California residents.’ [Citation.]”

(Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.)

 

4 “In Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 [56 

L.Ed.2d 611, 98 S.Ct. 2018], the Supreme Court held that [42 United States Code] 

‘[s]ection 1983 does not assign liability to a local government under a respondeat 

superior theory, but the entity may be liable if the constitutional violation was caused by 

its official policy, practice, or custom.’ [Citation.]” (Arce v. Childrens Hospital Los 

Angeles (2012) 211 Cal.App.4th 1455, 1465, fn. 3.)
5

The Minkoffs did not oppose the motion5 and counsel for the Minkoffs did not 

appear at the hearing. The trial court granted the motion “for the reasons stated in the 

moving papers.” The order required the Minkoffs “to file an undertaking to secure an 

award of costs in the amount of $35,275.00, which may be awarded to Defendants should 

they prevail in this action.” Counsel for the County served the order by mail on May 29, 

2012.

C. The Motion to Dismiss for Failure To File an Undertaking

Section 1030, subdivision (d), provides that “[t]he plaintiff shall file the 

undertaking not later than 30 days after service of the court’s order requiring it or within 

a greater time allowed by the court. If the plaintiff fails to file the undertaking within the 

time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the 

defendant in whose favor the order requiring the undertaking was made.” When the 

Minkoffs did not file the $35,275 undertaking within 30 days, the County filed a motion 

to dismiss.

The Minkoffs again did not file a timely opposition, but they did file an untimely 

one. The Minkoffs asked the trial court to “consider the time it took Plaintiff’s counsel to 

find a company to handle the undertaking based on his own schedule (Plaintiff[’]s

counsel is primarily a dependency attorney and as such is in court most days for 

appearances, contested hearings and trials) and to then coordinate the communication 

between the bond company, counsel and the Plaintiffs, each with their own scheduling 

issues.” The Minkoffs explained that they reside in Georgia and relied on their California 

attorney “to assist in obtaining the court ordered undertaking, which with Counsel’s 

 

5 Counsel for the Minkoffs apparently served counsel for the County with a 

response to the motion but did not file it with the court. The trial court’s order granting 

the motion for an undertaking states that “plaintiff filed a Response on March 5, 2012 to 

this motion. The court never received a copy or the original filing of this document. The 

court is informed by counsel for defendant of the filing. The Response is untimely and 

will not be considered.” The record on appeal does not contain a copy of this document.
6

availability took longer than anticipated.” The Minkoffs advised the court that they now 

had obtained a $35,275 bond, and asked the court “to allow ‘. . . a greater time . . .’ for 

them to have obtained the bond.” The Minkoffs, however, did not submit any admissible 

evidence in support of these statements. Counsel for the Minkoffs appeared at the 

hearing on the motion and argued that he had made a mistake in not asking for more time 

to obtain the undertaking.

On September 17, 2012 the trial court granted the motion. The court ruled: “At 

the hearing on this motion, the court indicated its view that the provisions of 

[section] 1030[, subdivision] (d) are mandatory and the case must be dismissed, but took 

the matter under submission in order to do further research to determine if the court had 

discretion to extend the time to file. After doing so, the court finds that any request to file 

an undertaking ‘within a greater time’ must be made before the 30 days has expired. The 

section makes it clear that plaintiff ‘shall’ file the undertaking not later than 30 days after 

service of the court’s order, or the proceedings ‘shall’ be dismissed, a mandatory 

directive to the court. Here, plaintiffs did not file until 76 days after the order requiring a 

bond, and then, only after this motion was filed. Further, the opposition papers were filed 

late. The court overlooks the late filing and considers plaintiff’s [sic] papers, but finds 

that the mandatory filing deadline was not complied with. Even if the court had 

discretion, the opposing papers do not make a factual showing of good cause to extend 

the time.”

On September 17, 2012 the trial court entered a minute order granting the motion, 

dismissing the case, and vacating the trial dates. The trial court subsequently signed and 

entered a formal written order on October 3, 2012. The Minkoffs did not appeal.6

 

6 “A judgment of dismissal following the plaintiff’s failure to furnish required 

security is appealable as a final judgment.” (Yao v. Superior Court (2002) 104 

Cal.App.4th 327, 330, fn. 2.)
7

D. The Motion for Relief Under Section 473

Instead, on April 2, 2013 the Minkoffs filed a motion for relief pursuant to 

section 473, subdivision (b). The Minkoffs repeated the arguments they made in 

opposition to the County’s motion to dismiss, including that they reside in Georgia, relied 

on their California counsel to assist with the undertaking, had difficulty locating a 

bonding company, and needed extra time “to prepare and provide the bond company with 

the appropriate paperwork and assurances . . . .” The Minkoffs again argued that their 

attorney was “primarily a dependency attorney” who was often in court. In his 

supporting declaration, counsel for the Minkoffs stated that after spending time 

unsuccessfully attempting to obtain a bond from a company in Georgia, he was not able 

to secure the bond until August 13, 2012. Counsel for the Minkoffs stated: “At the 

hearing on the motion for dismissal, I, as attorney for the Plaintiff’s [sic] acknowledge

that it was my mistake that I did not file for a continuance to allow more time to obtain 

the bond. I further informed the court I was aware of the 30 day statutory time frame, but 

had read the law to understand the court could on [sic] its discretion relieve a party of that 

time limit. However, my mistake was that I needed to ask the court’s permission and 

seek a continuance. It was my mistake, inadvertence and/or excusable neglect that I did 

not seek the continuance in a timely manner. [¶] I also informed the court that I had 

been pressed by an exceedingly heavy court schedule, since my primary practice is as a 

dependency attorney, and I spend most every day in that court system in hearings, 

contested hearings and adjudications. I also asked the court to consider the logistics of 

obtaining the undertaking with client’s [sic] who reside in Georgia.” Counsel asked the 

court to consider his “admission in court that [he] failed to file for a timely continuance to 

obtain an undertaking, and that I did so as a mistake, by my own inadvertence and that 

said mistake can be construed as excusable neglect.” The Minkoffs’ motion did not 

include a notice of motion and did not specify whether they were bringing the motion 

pursuant to the mandatory or discretionary provision of section 473, subdivision (b).

The County opposed the motion, arguing that the court, in granting the County’s 

motion to dismiss, had considered and rejected the identical arguments (although without 
8

any supporting evidence), that the Minkoffs had not acted diligently in bringing the 

motion,7 and that the Minkoffs had not shown mistake, inadvertence, surprise or 

excusable neglect on their part or the part of their attorney. The County argued that the 

dismissal of the Minkoffs’ action under section 1030 was not the kind of dismissal to 

which the mandatory provision of section 473, subdivision (b), applied and that the 

motion referred “only to discretionary relief” under section 473, subdivision (b), and was 

“not accompanied by an ‘affidavit of fault.’”

The trial court (a different judge from the judge who had heard the motion to 

dismiss) granted the motion for relief under section 473. The court stated that “relief 

pursuant to [section] 473 is mandatory in this case because [counsel for the Minkoffs] 

submitted a proper ‘affidavit of fault’ in his moving papers,” and therefore the court had 

“no choice but to grant the Minkoffs’ motion.” The court stated that, although the motion 

did not specifically refer to the mandatory provision of section 473, “the moving papers 

refer to relief under ‘[section] 473[, subdivision] (b),’ which is a sufficient request for 

mandatory relief.” The court also stated that “the minors should not be faulted for their 

attorney’s actions.” The trial court did not reach the issue of whether the Minkoffs were 

entitled to relief under the discretionary provision of section 473, subdivision (b). The 

County filed a timely notice of appeal.

 

7 The trial court’s order granting the County’s motion to dismiss is dated October 3, 

2012. The Minkoffs filed their motion to vacate the dismissal 181 days later on April 2, 

2013. On appeal the County asserts that the Minkoffs “waited until the final day to file 

. . . the request for relief” under section 473, subdivision (b), but argues that the Minkoffs 

nevertheless did not file the motion “within a reasonable amount of time.”
9

DISCUSSION

A. The Minkoffs Are Not Entitled to Mandatory Relief Under Section 473,

Subdivision (b).

“Section 473, subdivision (b) provides for two distinct types of relief. Under the 

discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or 

excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, 

order, or other proceeding taken against’ a party or his or her attorney. Under the 

mandatory relief provision, on the other hand, upon a showing by attorney declaration of 

‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default 

judgment or dismissal entered.’ [¶] The range of attorney conduct for which relief can 

be granted in the mandatory provision is broader than that in the discretionary provision, 

and includes inexcusable neglect. But the range of adverse litigation results from which 

relief can be granted is narrower. Mandatory relief only extends to vacating a default 

which will result in the entry of a default judgment, a default judgment, or an entered

dismissal.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 

615-616; see Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124 [“[s]ection 473, 

subdivision (b) provides for two distinct types of relief—commonly differentiated as 

‘discretionary’ and ‘mandatory’—from certain prior actions or proceedings in the trial 

court”].)

The trial court found that the Minkoffs were entitled to relief under the mandatory 

provision of the statute. We conclude that an order dismissing an action for failure to 

timely file an undertaking under section 1030 is not the type of dismissal for which the 

mandatory provision of section 473, subdivision (b), is available.

Courts apply the mandatory provision of section 473, subdivision (b), not to all 

dismissals, but only to those dismissals that “‘are the procedural equivalent of defaults—

i.e., those which occur because the plaintiff’s attorney has failed to oppose a dismissal 

motion.’ [Citation.]” (Leader v. Health Industries of America, Inc., supra, 89

Cal.App.4th at p. 618; see Matera v. McLeod (2006) 145 Cal.App.4th 44, 64 [“courts 
10

have stated that a ‘dismissal’ for purposes of the mandatory relief provision is limited to a 

dismissal that results from the failure to oppose a motion to dismiss”]; Gotschall v. Daley

(2002) 96 Cal.App.4th 479, 484 [“the mandatory provision of section 473, subdivision 

(b) applies only to those situations in which the mistake causes a failure to oppose a 

dismissal motion, such as failing to appear for the hearing on the motion”].) Thus, when 

in 1992 “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 . . . .” (Leader, supra, at p. 620.) As a result, courts have held that a plaintiff is 

not entitled to mandatory relief under section 473, subdivision (b), from dismissals for 

delay in prosecution, failure to serve the complaint in a timely manner, after the 

sustaining of a demurrer based on the expiration of the statute of limitations, failure to 

file an amended complaint after the sustaining of a demurrer with leave to amend, failure 

to request a hearing on alleged CEQA violations within the statutory deadline, pursuant 

to a settlement agreement, and a voluntary dismissal. (Matera, supra, at pp. 64-65; 

Nacimiento Regional Water Management Advisory Com. v. Monterey County Water 

Resources Agency (2004) 122 Cal.App.4th 961, 967-968.)

The dismissal in this case, following a contested motion to dismiss for failure to 

file an undertaking within the 30-day limit of section 1030, subdivision (d), was not the 

kind of dismissal for which mandatory relief is available under section 473, 

subdivision (b). (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 683 [mandatory 

provision of section 473, subdivision (b), was not meant to apply to “a motion lost, on its 

merits, after opposition was filed”].) The dismissal here was not in the nature of a 

default, but instead occurred only after the County had filed a motion to dismiss on 

statutory notice, the Minkoffs had filed an opposition on the merits (late, but considered 

by the trial court), and had appeared through counsel at the hearing on the motion. The

Minkoffs argued that they lived in Georgia, relied on their attorney in California (who 

was far away and very busy), and experienced unanticipated delays and difficulties in 

obtaining the bond. The opposition may have had some deficiencies, such as an absence 

of any declarations in support of the memorandum of points and authorities, but it was an 
11

opposition on the merits, followed by court hearing at which counsel for the Minkoffs 

had a full and fair opportunity to be, and was, heard. (See Leader v. Health Industries of 

America, Inc., supra, 89 Cal.App.4th at p. 621 [“the ‘day in court’ envisioned by the . . .

decisions [under the mandatory provision of section 473, subdivision (b)] is not a 

guaranteed trial on the merits, but merely the opportunity to appear and present evidence 

and argument in opposition to the motion to dismiss”].)

Moreover, the factual basis of the Minkoffs’ motion under section 473, 

subdivision (b), was the same as that of their opposition to the County’s motion to 

dismiss pursuant to section 1030. Both motions emphasized counsel’s long hearing days 

in dependency court, the difficulties of working with distant clients, and the delays 

experienced in obtaining the bond. As was the case in Peltier v. McCloud River R.R. Co.

(1995) 34 Cal.App.4th 1809, the Minkoffs’ “motion for relief merely restated the 

evidence and arguments offered in opposing dismissal and in seeking reconsideration of 

the dismissal order; the only new element was the attorney’s claim of mistake or neglect 

and evidence in support thereof. To the extent [the] section 473 motion restated and 

reargued facts and arguments tendered at the original motion to dismiss, his motion was 

properly denied because, ‘“A motion for relief from [dismissal] may not be used to 

merely amplify or supplement the evidence and argument[s] that were presented in 

opposition to the original motion to dismiss. [Citation.]”’ [Citation.]” (Id. at p. 1825; 

see Gotschall v. Daley, supra, 96 Cal.App.4th at p. 483 [“[s]ection 473, subdivision (b) 

was never intended to be a ‘catch-all remedy for every case of poor judgment on the part 

of counsel which results in dismissal’”].)

B. Remand Is Appropriate for the Trial Court To Rule on Whether the

Minkoffs Are Entitled to Discretionary Relief Under Section 473,

Subdivision (b).

Generally, a notice of motion must state whether the moving party is seeking relief 

under the mandatory or discretionary provision of section 473, subdivision (b). (Luri v. 

Greenwald, supra, 107 Cal.App.4th at pp. 1126-1127; see Cal. Rules of Court, 
12

rule 3.1110.) As noted, the Minkoffs’ motion did not include a notice of motion and did 

not differentiate between the mandatory and discretionary provisions of section 473, 

subdivision (b). In such a situation, “the trial court could reasonably have rejected the 

entire motion as defective and noncompliant with California rules and statutes.” (Luri, 

supra, at p. 1127.) The trial court had discretion, however, to overlook these defects, if 

the supporting motion papers made clear the grounds for relief sought. (Id. at p. 1125.) 

Here, the trial court overlooked the defects and granted relief based on the mandatory 

provision of the statute, a ruling we have concluded was erroneous, and never ruled on 

the request for relief under the discretionary provision. We therefore remand the matter 

for the trial court to determine whether the Minkoffs are entitled to discretionary relief 

under section 473, subdivision (b). (See Right Site Coalition v. Los Angeles Unified 

School Dist. (2008) 160 Cal.App.4th 336, 345 [“it is the role of this court to review the 

trial court’s exercise of its discretion . . . rather than to exercise discretion in the first 

instance”]; Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1181 

[“remand to allow trial court to exercise discretion is proper after reversal for failing to 

exercise discretion”].)
13

DISPOSITION

The order vacating the dismissal of the Minkoffs’ action is reversed and remanded 

with instructions to deny the motion pursuant to the mandatory provision of section 473, 

subdivision (b), and to consider whether the Minkoffs are entitled to relief under the 

discretionary provision of section 473, subdivision (b). Each side is to bear its costs on 

appeal.

SEGAL, J.*

We concur:

PERLUSS, P. J.

WOODS, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.