Judge Andrew E. Cooper, Case Number: 23CHCV02833, Date: 2024-09-09 Tentative Ruling

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MOTION TO VACATE/SET ASIDE DISMISSAL

Los Angeles Superior Court Case # 23CHCV02833

Motion Filed: 7/12/24

MOVING PARTY: Plaintiff Gilda Arutunian (“Plaintiff”)

RESPONDING PARTY: none

RELIEF REQUESTED: An order vacating the Court’s 5/30/24 dismissal of Plaintiff’s entire complaint.

TENTATIVE RULING: The unopposed motion is granted.

This is a premises liability case in which Plaintiff alleges that on 10/2/21, “Plaintiff was walking inside the unit owned by Defendant where she tripped over a torn carpet sustaining injuries to her knees, thighs and lower back.” (Compl. p. 4.)

On 9/20/23, Plaintiff filed her complaint against three named Defendants, alleging the following causes of action: (1) Premises Liability; and (2) General Negligence. On 4/6/23, default was entered against Defendant. On 11/14/23, Defendants filed their answer and cross-complaint, alleging against Roe defendants 1–50 the following causes of action: (1) Equitable Indemnity and Contribution; (2) Implied Indemnity; and (3) Declaratory Relief.

On 4/25/24, Plaintiff’s counsel failed to appear for a case management conference, and the Court therefore issued an Order to Show Cause regarding the same for 5/30/24. (4/25/24 Min. Order.) On 5/30/24, Plaintiff’s counsel again failed to appear for the hearing on the Order to Show Cause, and the Court therefore dismissed Plaintiff’s entire complaint without prejudice. (5/30/24 Min. Order.)

On 7/12/24, Plaintiff filed the instant motion to vacate the Court-ordered dismissal of her complaint. No opposition has been filed to date.

“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 … resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc. § 473, subd. (b).) Unexpected “illness of counsel which actually disables him from timely compliance with the statutory rules of procedure constitutes excusable neglect” under Code of Civil Procedure section 473. (Minick v. City of Petaluma (2016) 2 Cal.App.5th 15, 31.)

Here, Plaintiff argues that the dismissal should be vacated because “Plaintiff’s counsel had every intent to appear at the April 25, 2024, and May 30, 2024, Case Management Conferences and related OSC hearing. Plaintiff’s counsel was unable to appear on April 25, 2024, because she was undergoing a biopsy procedure and was in the hospital. Thereafter, one month later and unexpectedly, Plaintiff’s counsel was diagnosed with pneumonia and was admitted to the hospital on May 28, 2024, and was unable to appear on May 30, 2024.” (Pl.’s Mot. 8:1–6.) Plaintiff’s arguments are supported by her attorney’s sworn declaration attesting as such. (Decl. of Anita Khachikyan, ¶¶ 8–9, 13.) Based on the foregoing, the Court finds that Plaintiff has met her burden to show that her counsel’s failure to appear for the 4/25/24 and 5/30/24 hearings was due to excusable neglect.

The instant motion was filed on 7/12/24, which is within six months of the 5/30/24 Order dismissing Plaintiff’s complaint. Accordingly, all requirements of Code of Civil Procedure section 473 have been satisfied, and the Court must grant Plaintiff’s request to set aside the 5/30/24 Order dismissing the action.