Judge: Anne Hwang, Case: 20STCV26256, Date: 2024-08-20 Tentative Ruling

Case Number: 20STCV26256    Hearing Date: August 20, 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 July 10, 2020, Plaintiffs Frederico Reyes Garcia and Maria Rodriguez (“Plaintiffs”) filed a complaint against Oasis Pizza Inc, Zack Roberts, and Does 1 to 50 for negligence, negligent entrustment, and negligent hiring, supervision, and retention. The case revolves around an alleged motor vehicle accident.

On January 25, 2024, at an Order to Show Cause re: monetary sanctions for failure to enter default judgments/ dismissal for failure to enter default judgments, counsel for Plaintiffs did not appear. There was also no communication to the Court as to why there were no appearances. Then, pursuant to an oral request by Defendant, the Court ordered the complaint dismissed with prejudice. (Min. Order, 1/25/24.)

On July 25, 2024, Plaintiffs filed the instant motion to set aside the dismissal under Code of Civil Procedure section 473(b). Specially Appearing Defendant So-Cal Dominoids, Inc. has filed a notice of conditional non-opposition requesting that if the motion is granted, it shall have 15 days to file a Motion to Dismiss that was previously taken off-calendar after the dismissal was entered.

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.)   

“ ‘A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.’ [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [finding excusable mistake where counsel provided a settlement offer for judgment “against” his client, as opposed to “in favor of”, since this was a clerical mistake].)

However, mere neglect or negligence is not a sufficient ground for relief. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 251–52 [finding unexcused neglect where party failed to provide evidence that it possessed months before, in opposition to a summary judgment motion]; Martin v. Johnson (1979) 88 Cal.App.3d 595, 606–607 [no abuse of discretion in refusing to vacate summary judgment due to attorney's error in submitting declarations not within the personal knowledge of the declarant].)

Relief under section 473(b) is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. With an attorney affidavit of fault, there is no requirement that the attorney’s mistake or inadvertence be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) The affidavit also does not need to contain a reason for the mistake. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)

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]”, as well as “discretionary dismissals based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion.” (Id.)

DISCUSSION

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

The Declaration of Fred Hanassab, Plaintiffs’ counsel (“Counsel”), states the following: “[m]y mistake, surprise, inadvertence, and/or excusable neglect was the reason for Plaintiffs’ failure to  appear at the January 25, 2024 Order to Show Cause Hearings, which was caused by a technical error within my office, leading to the hearings not being calendared in my office calendar.” (Hanassab Decl. ¶ 5.)          

            The Court grants the motion to set aside the dismissal. Specially Appearing Defendant, So Cal Dominoids, Inc., may file a motion to dismiss.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiffs’ Motion for Order Granting Setting Aside Dismissal. An Order to Show Cause Re Monetary Sanctions up to $1000/ Dismissal for failure to enter default judgments is set for September 25, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. Default packages must be filed five court days in advance.

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