Judge: Anne Hwang, Case: 19STCV33252, Date: 2023-07-21 Tentative Ruling

Case Number: 19STCV33252    Hearing Date: November 29, 2023    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 September 18, 2019, Plaintiff David Allsop (Plaintiff) filed a complaint against Defendants Starbucks Corporation (Defendant) and Does 1 to 10 for premises liability.

On September 11, 2023, the case was called for trial and counsel for Plaintiff did not appear. Upon oral request by Defendant, the Court dismissed the complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(5). (Min. Order, 9/11/23.)

On October 12, 2023, Plaintiff filed the instant motion to set aside the dismissal. Defendant opposes and Plaintiff replies.

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

            Procedurally, the present motion is timely because it was filed within six months after the case was dismissed.

The Declaration of Christian Oronsaye, Plaintiff’s counsel, (Counsel) states: “I admit that due to excusable neglect, mistake, inadvertence, I was unable to appear at 8:30 a.m. However, I was in the Court premises going through the security check ins and due to my lack of ID that was stolen on 8/26/23, I appeared in the Courtroom at 8:35am.” (Oronsaye Dec. ¶ 24.) Counsel further declares that “[f]ailure to timely call the court while I was at the security check in and based on the use of my cell phone for my court proceedings at San Bernardino’s courthouse, theft of my ID on 8/26/23 which made it difficult for me to cross the security check in until I had to pull secondary records from my emails/ photo album on my cell phone, constitute excusable neglect, mistake and/or surprise for the purpose of granting this motion. (Id. ¶ 33.)

            As an initial matter, Defendant disputes Counsel’s factual assertions regarding his time of arrival. Defendant asserts that Counsel was not five minutes late, but rather about 25 minutes late. Defendant also notes several inconsistencies in counsel’s declaration.

            Although Counsel’s declaration appears to blame a number of other individuals, including opposing counsel, security personnel, and apparently also the Court, and despite Defendant’s observations that Counsel’s declaration is both factually inaccurate and inconsistent, the Court concludes that Counsel does ultimately admit a mistake for being late. Accordingly, the Court grants the motion to set aside the dismissal.

Defendant requests a monetary sanction of $1,000. Under section 473, whenever the court grants relief from dismissal, the court may “[i]mpose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.” (Code Civ. Proc. § 473(c)(1)(A).) Plaintiff argues that relief cannot be conditioned on payment of a monetary penalty. (Reply, 6; Code Civ. Proc. § 473(c)(2).) Separate and apart from the relief granted, the Court finds that monetary sanctions are warranted. Counsel’s evidence establishes that he did not enter the parking structure until 8:18 a.m., knowing that he did not have identification and knowing that he was ordered to appear personally for trial at 8:30 a.m., after which counsel made a telephone call to another court for an unclear amount of time. Counsel’s declaration does not appear to accept responsibility for wasting opposing counsel’s and the Court’s time, but rather blames opposing counsel for making a procedurally proper motion. Although Plaintiff should not be penalized for Counsel’s mistake, the fault lies entirely with counsel for Plaintiff. Under these circumstances, the Court finds that a penalty is appropriate.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to set aside the dismissal. Trial is set for February 6, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. All trial counsel are ordered to appear personally at 8:30 a.m.

All discovery remains closed.

Counsel for Plaintiff shall pay $1,000 to counsel for Defendant within 30 days.

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