Judge: Anne Hwang, Case: 19STCV42470, Date: 2023-08-10 Tentative Ruling

Case Number: 19STCV42470    Hearing Date: August 10, 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 (which is highly encouraged).  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

MOTION

Plaintiff Artak Gabuzyan moves for an order vacating the dismissal of this action without prejudice entered on or about June 2, 2023. This motion is unopposed.

BACKGROUND

            This action arises out of a fire which erupted on Plaintiffs’ multi-unit residential property in December, 2017. On November 25, 2019, Plaintiffs Artak Gabuzyan, Gevork Gabuzyan, Jose Perez, Rosa Perez, and Wendy Leal filed a Complaint against Defendant City of Los Angeles and Does 1-100 alleging causes of action for (1) Negligence; (2) Trespass; (3) Private Nuisance; (4) Premises Liability; (5) Violation of Public Utilities Code § 2106; and (6) Negligent Infliction of Emotional Distress.

            Gevork Gabuzyan, Jose Perez, Rosa Perez, and Leal settled their claims and were dismissed with prejudice on May 25, 2023. Artak Gabuzyan, the only remaining Plaintiff, and Defendant attended mediation, which ultimately led to a settlement on or about April 7, 2023. (Hamassian Decl. ¶ 4.) However, due to the settlement amount, certain procedural steps must be taken by Defendant in order for the settlement checks to be issued, including but not limited to board approvals and a signature from the Los Angeles City Attorney. (Hamassian Decl. ¶ 5.) Therefore, Plaintiff filed a Notice of Conditional Settlement on April 13, 2023. (Hamassian Decl. ¶ 6.)

            An Order to Show Cause re: Dismissal was held on June 2, 2023. There was no appearance for either side. The Court subsequently entered an Order dismissing the matter without prejudice. (Hamassian Decl. ¶¶ 7 and 8.)

            On June 9, 2023, Plaintiff filed the instant motion seeking relief from that court order.

ANALYSIS

Code of Civil Procedure § 473(b) states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).)

Here, Plaintiff’s Counsel, Anthony S. Hamassian, contends that he failed to appear at the June 2, 2023 OSC hearing by mistake, inadvertence, and excusable neglect arising out of a clerical and calendaring error. (Hamassian Decl. ¶ 8.)

The Court finds that Hamassian’s calendaring error constitutes sufficient ground to relieve Plaintiff from the July 2, 2023 order dismissing the action without prejudice. Calendar errors by an attorney or a member of his staff, are excusable. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Furthermore, Defendant will not be prejudiced by the Court  granting this request and has not opposed the motion. The parties had already reached a conditional settlement.

Accordingly, Plaintiff’s motion for an order vacating the dismissal of this action entered on June 2, 2023 is granted.

The Court sets an Order to Show Cause Re: Dismissal (Settlement) for October 10, 2023 at 8:30 am in Department 32 of the Spring Street Courthouse.

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.