Judge: Anne Hwang, Case: 20STCV35407, Date: 2024-04-19 Tentative Ruling

Case Number: 20STCV35407    Hearing Date: April 19, 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 September 16, 2020, Plaintiff Dexter Fuentes (Plaintiff) filed a complaint against Defendants 3 Alameda Plaza LLC and Does 1 to 20 for injuries resulting from an alleged battery at a bar.

Defendant 3 Alameda Plaza LLC was served the summons and complaint and did not file an answer. Plaintiff obtained an entry of default against 3 Alameda Plaza LLC on November 9, 2022. The Court then set an order to show cause re: dismissal for failure to enter default judgment, starting on January 11, 2023.

Plaintiff’s request for default judgment was denied on June 22, 2023. After this, Plaintiff failed to re-file a new default judgement request.

On January 22, 2024, at the OSC re: dismissal and/or monetary sanctions for failure to enter default judgment, no default judgment package was submitted. As a result, Plaintiff’s complaint was dismissed without prejudice. (Min. Order, 1/22/24.)

On February 28, 2024, Plaintiff filed this motion to 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

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

Plaintiff’s counsel declares that after the Court’s June 22, 2023 minute order denying the request for default judgment, she filed a declaration on July 25, 2023, and another supplemental declaration on November 15, 2023. (Casado Decl. ¶ 7–8.) Counsel states she “mistakenly believed, as of [her] November 15, 2023 filing of the Supplemental Declaration, that the Court had before it all papers necessary to enter Default Judgment against Defendant. Thus, [counsel] did not re-file another Request for Entry of Default Judgment, and erroneously awaited the Court's taking action on the papers previously filed.” (Id. ¶ 8.) Counsel also declares she did not appear at the OSC on January 22, 2024 because she had a stomach flu, and instead asked counsel Lawrence Adamsky to appear on Plaintiff’s behalf. (Id.  ¶ 9.)

Counsel declares: “Had I correctly understood that the Court awaited my resubmission of the form, I could have and would have done so quite readily.” (Id. ¶ 10.)

Based on the foregoing, the Court finds that Plaintiff’s counsel failed to re-submit the default judgment package due to excusable neglect.

Accordingly, the motion to set aside the dismissal entered on January 22, 2024 is granted.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Plaintiff’s motion to set aside the dismissal.

The matter is set for an Order to Show Cause re: Dismissal and/or Monetary Sanctions for Failure to Enter Default Judgment on May 20, 2024, at 8:30 a.m. in Department 32 of the Spring Street Courthouse. Plaintiff must file a new default package with all supporting documents at least ten days in advance.

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