Judge: Alison Mackenzie, Case: 19STCV07986, Date: 2023-11-20 Tentative Ruling
Case Number: 19STCV07986 Hearing Date: November 20, 2023 Dept: 55
NATURE OF PROCEEDINGS: Motion For An Order Setting Aside And
Vacating Dismissal Of Plaintiffs Complaint.
The motion is granted.
CCP § 473.
The Court vacates and sets aside the dismissal order
entered 5/5/23 and reinstates this case to the active civil case inventory.
On 3/7/19, plaintiffs LOUIS GRAY and JASZMIN GRAY
(“plaintiffs”) filed a Complaint for breach of contract and specific
performance, against sellers/co-owners (“defendants”) of 11827 S. New Hampshire
Ave., Los Angeles. On 6/7/22, plaintiffs
filed a First Amended Complaint.
On 8/31/22, plaintiffs and Co-Defendant Defendant,
BRUCE DUREN, administrator of the Estate of ODESSA WARE PORTER stipulated to
stay this entire action pending contractual arbitration, and filed the document
9/1/22. On 9/9/22, the Court ordered the
entire action stayed, pursuant to the stipulation.
On 3/21/23, plaintiffs filed a notice that the Court
issued a Minute Order on 3/15/23 setting an Order to Show Cause for 5/5/2023 regarding
(1) resetting case of trial, (2) failure to set up arbitration and (3) failure
to appear on 03/15/23. After no one appeared at the hearing on 5/5/23, the
Court entered a minute order dismissing without prejudice the First Amended
Complaint.
On 6/15/23, plaintiffs filed a motion to vacate and
set aside the dismissal order done pursuant to an unopposed Order to Show Cause
(“OSC”) heard. Co-Defendant opposes the motion.
Mandatory Relief
As to requests for mandatory relief under CCP Section
473, as to whether or not the prerequisites were shown met, appellate courts
will determine whether substantial evidence supporting the findings. Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.
Co-Defendant argues that the motion does not contain
briefing about mandatory relief (opp., p. 3).
This is not accurate. Plaintiffs provided evidence that moving counsel
accepts the blame for failing to attend the Order to Show Cause hearing (e.g., mot.,
p.7, ¶ 15). Counsel’s declaration adequately establishes that dismissal of the
case was the result of counsel’s inadvertence and neglect under CCP Section
473(b).
Failure to Prosecute Service of Summons
Co-Defendant brings up a new issue not considered with
the OSC or addressed in the motion—i.e., availability of dismissal for failure
to serve the summons within 3 years
(opp., p. 2, ¶ 4).
Due process requires an order with a significant
impact on a case be made with a full opportunity to brief the issues and
present evidence, whether the issue is presented in a motion or by way of an
order to show cause. Carabini v.
Superior Ct. (1994) 26 Cal. App. 4th 239, 244. Cf.
Vaccaro v. Kaiman (1998) 63 Cal. App. 4th 761, 770 (mandatory relief of CCP § 473 required the court to set aside
dismissal after insufficient OSC notice).
Because the OSC was not based on failure to serve the
summons in three years, the Court will require a motion and briefing on that
issue if Co-Defendant desires to pursue that.
Excusable Neglect
Co-Defendant contends that the motion failed to show excusable
neglect, such that attorney neglect is imputed to the plaintiffs (opp., pp. 4-5). Excusable neglect exists where counsel or the
party acted as a reasonably prudent person would under the circumstances. Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206; Zamora v. Clayborn Contracting Group, Inc.
(2002) 28 Cal. 4th 249, 258. However, attorneys’
negligence amounting to conduct falling below the standard of care in the
profession is imputed to their clients, and does not constitute excusable
neglect in support of relief under Code of Civil Procedure Section 473. Hopkins & Carley v. Gens (2011)
200 Cal.App.4th 1401, 1415; Zamora v.
Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.
Here, the motion includes good excuses for not
prosecuting the case, including that the Court approved staying the entire
action pending arbitration. Therefore,
both mandatory and discretionary relief apply here.
Arbitration Stay
Co-Defendant argues that he did not sign the
stipulation to arbitrate as did the other parties (opp., 5:5-6). The motion indicates agreement with that.
“[W]hen there is a severance of arbitrable from
inarbitrable claims, the trial court has the discretion to stay proceedings on
the inarbitrable claims pending resolution of the arbitration.” Cruz v. PacifiCare Health Systems, Inc.
(2003) 30 Cal.4th 303, 320. A stay,
pursuant to Code of Civil Procedure Section 1281.4, may be an abuse of
discretion, where it essentially imposes arbitration upon non-contracting
parties. Independent Assn. of Mailbox
Center Owners, Inc. v. Sup. Ct. (2005) 133 Cal. App. 4th 396, 413.
In the matter at hand, the Court had discretion to
stay the entire action even without Co-Defendant’s joining the other parties’
stipulation to arbitrate. Hence, that is
no basis to avoid applying that stay in analyzing the opposing arguments.
Conclusion
The motion to vacate and set aside the dismissal order
is granted.