Judge: Anne Hwang, Case: 18STCV04392, Date: 2024-03-12 Tentative Ruling

Case Number: 18STCV04392    Hearing Date: March 12, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On November 6, 2018, Plaintiffs Aida Sedano-Herrera and Ayhden Herrera (“Plaintiffs”) filed a complaint against Defendant McDonald’s Corporation and Does 1 to 25 after Ahyden Herrera, Aida Sedano-Herrera’s son, allegedly consumed food with a foreign object. Since Ahyden Herrera is a minor, Aida was appointed guardian ad litem on March 11, 2019.

On June 28, 2022, Plaintiffs filed a notice of settlement of the entire case.

On September 14, 2022, Plaintiffs’ action was dismissed with prejudice, pursuant to Plaintiffs’ request for dismissal. (Dismissal filed 9/13/22.)

On February 21, 2024, Plaintiffs filed the instant motion to set aside and vacate the dismissal so that they may file a petition to approve a minor’s compromise. No opposition has been filed.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.  Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)   

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) However mandatory relief is only available when a party fails to oppose a dismissal motion (“which are procedurally equivalent to a default”). (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.) The mandatory relief provision does not apply to dismissals for “failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted], and voluntary dismissals entered pursuant to settlement [citations omitted].” (Id.)

DISCUSSION

            Plaintiffs’ notice of motion does not state the grounds for bringing this motion. However, in the memorandum, Plaintiffs cite to Code of Civil Procedure section 473(b).  Procedurally, the present motion is untimely under section 473(b) since it was filed over six months after the case was dismissed.  The six-month limitations periods of the mandatory and the discretionary relief provisions of section 473(b) mean the longer of six calendar months or 182 days. (See Jimenez v. Chavez (2023) 97 Cal.App.5th 50, 58.) Therefore, Plaintiffs’ deadline to file this motion was March 15, 2023. Since the motion was filed on February 21, 2024, it is untimely under section 473(b).

            However, Plaintiffs also argue the minor Plaintiff will be prejudiced if relief if not granted.

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿¿ 

¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿¿ 

¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.)¿ “For attorney misconduct to support equitable relief from a default judgment due to extrinsic mistake, there must have been ‘neglect of an extreme degree amounting to positive misconduct’ by counsel, rather than mere inexcusable neglect, sufficient to obliterate the attorney-client relationship and thereby preclude any imputation of counsel's neglect to the client. [Citations.] ‘Positive misconduct is found where there is a total failure on the part of counsel to represent his client.’ [Citation.]” (People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584.)

            Here, Plaintiffs argue that their former counsel inadvertently filed a request for dismissal with prejudice after the case settled, but before a minor’s compromise could be approved. (Pirnia Decl. ¶ 4.) This attorney is no longer with the firm. Plaintiff’s current counsel declares that on December 6, 2023, he discovered that the former attorney had filed a minor’s compromise petition in Probate Court on November 16, 2022. Plaintiffs argue their counsel acted diligently to bring this motion after discovering the inadvertent dismissal. Plaintiffs seek to reopen this case solely to file their petition for approval of a minor’s compromise, pursuant to the settlement that occurred in 2022.

CONCLUSION AND ORDER

The Court grants the motion to reopen for the limited purpose of a hearing on a petition for approval of minor’s compromise, based on the notice of settlement filed on June 28, 2022. Plaintiffs must file and serve the petition within 30 days.

The matter is set for an Order to Show Cause Re Dismissal (Settlement) for May 13, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Plaintiffs to provide notice and file a proof of service of such.