Judge: Anne Hwang, Case: 19STCV41530, Date: 2023-12-06 Tentative Ruling

Case Number: 19STCV41530    Hearing Date: December 6, 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 November 19, 2019, Plaintiff Bethanne Packerd (Plaintiff) filed a complaint against Defendants Rodolfo Martinez and Does 1 to 50 for injuries resulting from a motor vehicle/ pedestrian accident. On December 8, 2021, Plaintiff filed a first amended complaint (FAC).

On September 16, 2022, after numerous orders to show cause, the Court held an OSC Re: Dismissal for Failure to Enter Default/ alternatively trial setting conference. Counsel for Plaintiff did not appear and the Court dismissed the FAC without prejudice. (Min. Order, 9/16/22.)

On March 14, 2023, Plaintiff filed this motion to vacate the dismissal pursuant to Code of Civil Procedure section 473(b).

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 just within six months after the case was dismissed.  

            Here, the declaration of Patrick Khalil (Counsel) states that due to an inadvertent calendaring error in his office, Counsel failed to appear at the September 16, 2022 order to show cause hearing. (Khalil Decl. ¶ 14.) Counsel also details his previous appearances and attempts to litigate this case. (Id. ¶ 4–14.)  Counsel seeks to enter default and obtain a court judgment against Defendant in this case.  (Id. ¶ 16.)

            Counsel argues that “Counsel for Plaintiff has truly pushed to prosecute this matter.” (Khalil Dec. ¶ 14.) While the Court questions this assertion in light of the numerous orders to show cause, the age of the case, and the delay in filing this motion, the Court finds that a calendaring error does constitute excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Accordingly, the Court grants the motion to set aside the dismissal.

            However, the Court admonishes counsel for Plaintiff that default must be properly entered by the next court date. (See Cal. R. Ct. 3.110(g) [“If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default]; Cal. R. Ct. 3.110(h) [When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.”].) NO FURTHER EXTENSIONS WILL BE GRANTED ABSENT GOOD CAUSE.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to vacate the dismissal.  

The Court sets the matter for an Order to Show Cause Re: Dismissal Failure to Enter Default/ alternatively trial setting conference for February 6, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

            Plaintiff shall provide notice of the Court’s order and file a proof of service of such.