Judge: Anne Hwang, Case: 20STCV29000, Date: 2024-05-01 Tentative Ruling

Case Number: 20STCV29000    Hearing Date: May 1, 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 31, 2020, Plaintiff Anthony Lopez (“Plaintiff”) filed a complaint against Defendants AWRS of SFV LLC, Hector Aparicio (“Defendants”) and Does 1 to 20 for negligence from a motor vehicle accident.

On January 23, 2024, the case was called for trial at 8:30 a.m. and counsel for Plaintiff did not appear. Upon oral request by Defendants, the Court dismissed the complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(5). (Min. Order, 1/23/24.) The minute order states that Plaintiff’s counsel appeared in the courtroom at 8:50 a.m.  

On April 2, 2024, Plaintiff filed the instant motion to set aside the dismissal. Defendants oppose in part. 

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 Plaintiff’s counsel, Michael H. Moghtader states that on the day of the trial, he left his residence in Woodland Hills at 7:20 a.m., expecting a normal travel time of 45 minutes. (Moghtader Decl. ¶ 5–6.) He encountered heavier traffic than usual and entered the parking lot at 8:34 a.m. (Id. ¶ 7, Exh. A.) Counsel declares that he was mistaken about the time required on January 23, 2024 to travel to the courthouse. Therefore, seeing as Counsel asserts he made a mistake, the motion to set aside is granted.

Defendants do not oppose setting aside the dismissal but oppose Plaintiff’s request that the Court set a new trial date at the hearing. Instead, they ask the Court to set a trial setting conference on a future date. Defendants offer no further information why a trial setting conference is needed. To the extent that the parties are unable to appear for trial, they may timely submit a joint stipulation and proposed order to continue the trial date.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to set aside the dismissal. Trial is set for June 12, 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.

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