Judge: Anne Hwang, Case: 20STCV35977, Date: 2023-11-01 Tentative Ruling

Case Number: 20STCV35977    Hearing Date: November 1, 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 September 21, 2020, Plaintiff Maria de Jesus Gutierrez Garcia (Plaintiff) filed a complaint against Jose Arreguin, Jorge Arreguin, Norma Jimenez, and Does 1 through 50 for negligence and premises liability. By Doe amendment, Angel Huerta and Norma Huerta were added as Defendants.

After several hearings, the Court set an Order to Show Cause Re Dismissal for Failure to Enter Default as to Jorge Arreguin and Norma Jimenez and Order to Show Cause Re Sanctions for Failure to Serve (as to Jose Arreguin) for September 16, 2022. Plaintiff’s counsel was ordered to appear personally. (See Minute Order Dated September 9, 2022.) Counsel failed to appear personally and therefore failed to show cause. (See Minute Order Dated September 16, 2022.) The Court dismissed without prejudice Defendants Jose Arreguin and Jorge Arreguin.

On October 17, 2022, the Court set an Order to Show Cause Re Dismissal Due to Delay in Prosecution and ordered counsel to appear personally on November 9, 2022. (See Minute Order Dated October 17, 2022.) On November 9, 2022, counsel failed to appear personally and therefore failed to show cause. (See Minute Order Dated November 9, 2022.) The Court therefore dismissed the complaint without prejudice.

On July 17, 2023, Plaintiff filed the instant motion to set aside the dismissals of Defendants Jose Arreguin, Jorge Arreguin, and Angel Huerta.

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.

“After six months from default, a trial court may still vacate a default on equitable ground even if statutory relief is unavailable.”¿ (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)¿ A party may obtain equitable relief from an entry of dismissal based on an extrinsic mistake when the moving party: (1) has a meritorious case, (2) articulates a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrates diligence in seeking to set aside the dismissal once discovered.¿ (Id. at p. 982.)¿ 

An extrinsic mistake is broadly defined “. . . to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense.”¿(In re Marriage of Park (1980) 27 Cal.3d 337, 342.) An ‘extrinsic’ mistake means a mistake that deprived a party of the opportunity to present a claim or defense while an ‘intrinsic’ mistake is one that goes to the merits of a proceeding.¿ (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1064-1065.)¿ 

A default cannot be set aside when the complaining party’s negligence contributed to the rise to the fraud or mistake.¿(See Kulchar v. Kulchar (1969) 1 Cal.3d 467, 473-474 [complaining party’s failure to investigate and assemble evidence at trial as grounds for denying equitable relief sought].)¿An extrinsic mistake may result from a disability when the disability renders the party incompetent or incapacitated such that it deprives the party from asserting a claim or defense. (See id. at pp. 471-472.) 

DISCUSSION

            Procedurally, the present motion pursuant to Code of Civil Procedure section 473b is untimely because the dismissals occurred in September 2022 and November 2022. Because Plaintiff filed this motion on July 17, 2023, the Court cannot set aside the dismissals under section 473b.

However, Plaintiff asks the Court to set aside the dismissal on equitable grounds. Plaintiff argues that her former counsel, John R, Rofael, failed to appear personally because he was suffering from a medical condition. (Fradkin Decl. ¶10.) Also, due to his medical condition, Mr. Rofael did not calendar the dates for the hearings in the firm’s calendaring system. (Id.) In mid-June 2023, the case was transferred to current counsel Igor Fradkin. (Id.) Mr. Fradkin declares that upon discovering the dismissals, he promptly filed the instant motion. (Id. ¶ 11.) He asserts that Plaintiff will be prejudiced if relief is not granted since the dismissals deprive her of deciding her case on the merits.

The Court first notes that Mr. Rofael’s medical condition (which is not described with particularity nor supported by evidence) could be considered an external mistake if it resulted in a disability that left him incapacitated. Plaintiff describes that Mr. Rofael could not appear in-person due to his condition but does not describe attempts to alert the Court of that fact, or if a remote appearance was possible. Also, while Plaintiff has shown that counsel acted diligently after learning of the dismissal, Plaintiff does not discuss whether she has a meritorious case. Accordingly, the Court denies Plaintiff’s motion. 

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff’s motion to set aside the dismissals.  

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