Judge: Anne Hwang, Case: 20STCV28162, Date: 2023-11-22 Tentative Ruling

Case Number: 20STCV28162    Hearing Date: November 22, 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 July 27, 2020, Plaintiffs Claudia Palma and Juan Alvarado (Plaintiffs) filed a complaint against Defendants John Kevin Gonzalez Aguilera, Jazmine Martinez (Defendants), and Does 1 to 25, for injuries resulting from a motor vehicle accident.

On November 28, 2022, the Court held an Order to Show Cause Re: dismissal for failure to serve/trial setting conference. Counsel for Plaintiffs did not appear, and the Complaint was dismissed without prejudice. (Min. Order, 11/28/23.)

On May 25, 2023, Plaintiff filed a motion to set aside the dismissal under Code of Civil Procedure section 473b. The Court denied the motion without prejudice on the basis that Plaintiffs failed to serve notice of the motion on Defendants. (Min. Order, 7/27/23.)

On August 3, 2023, Plaintiffs filed this motion to cure the defective service and set aside 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

            Plaintiffs ask for relief to cure the service of their first motion to set aside. That motion was timely because it was filed on May 25, 2023, within six-months after the dismissal on November 28, 2022. However, the instant motion was filed on August 3, 2023, and therefore is not timely regarding the November 28, 2022 dismissal.

Plaintiffs’ first timely motion was denied because they failed to serve notice to Defendants. Therefore, the issue now is whether the Court may grant relief for an error that caused Plaintiffs to miss the six-month deadline. Plaintiffs do not discuss this issue in their brief.

The Court of Appeal has held that “a court has no authority under section 473, subdivision (b), to excuse a party's noncompliance with the six-month time limit.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345 [“Courts have held that some statutory time limits must be strictly enforced and that a court has no authority under section 473, subdivision (b), to grant relief from a party's failure to comply with those time limits. . . . We hold that the six-month limit under section 473, subdivision (b), is sufficiently similar to a statute of limitations or the statutes governing the time to file a notice of intention to move for a new trial (§ 659) and to set aside a judgment under section 663 (§ 663a) that the same rule should apply here.”].) In Arambula, a plaintiff filed a timely motion for relief under section 473 but failed to serve notice on an opposing party. (Id. at 338-39.) Learning that the party was not served on the day of the hearing, the court continued the hearing 21 days later and plaintiff properly served the party. (Id.) However, by that point, the six-month deadline had passed and the trial court lacked authority to extend it. (Id. at 338. 339, 345.) The facts are similar here. When the Court denied Plaintiffs’ motion on July 27, 2023, the six-month deadline had expired. Based on Arambula, section 473b cannot be used to grant relief for failing to meet its own six-month deadline (i.e. correcting the service issue). An opposing party also does not waive the six-month limit by opposing the motion on its merits. (Id. at 344.) Therefore, the Court has no authority to grant relief under section 473b.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiffs’ motion to set aside the dismissal.  

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