Judge: Anne Hwang, Case: 20STCV36314, Date: 2023-10-05 Tentative Ruling

Case Number: 20STCV36314    Hearing Date: October 5, 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 22, 2020, Plaintiff Binti-Michal Decohen-Miller by and through her guardian ad litem Jezreel Patricia Decohen (Plaintiff) filed a complaint against Defendant RC Street Shop, LLC, Igor Orlov, and Does 1 to 100 (Defendants) for negligence and premises liability.  

On May 11, 2023 Plaintiff filed a notice of settlement. The Court scheduled an OSC Re: Dismissal (Settlement) on July 3, 2023. On July 3, 2023, Plaintiff’s counsel did not appear and the Court dismissed Plaintiff’s complaint without prejudice.

On September 6, 2023, Plaintiff filed the instant motion to set aside the dismissal.

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 Code of Civil Procedure § 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 § 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.) When relief from default and default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)¿¿¿ 

DISCUSSION

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

            Secondly, Plaintiff’s counsel attached a signed declaration to this motion. In it, he explained that he did not appear at the hearing on July 3, 2023 because he was out of the country at the time. (Salute Decl. ¶ 13.) He further stated that the “policies and procedures were not followed” regarding his office’s calendaring system due to “mistake, inadvertence, excusable neglect, and surprise.” (Salute Decl. ¶ 14.) Counsel further states that Plaintiff, who is a minor will be prejudiced by the dismissal since the Court still needs to approve the minor’s compromise. (Id. ¶ 16.)

CONCLUSION AND ORDER

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

The Court sets an Order to Show Cause Re: Dismissal (Settlement) for November 6, 2023 at 8:30 a.m.

            Plaintiff shall provide notice of the Court’s order and file a proof of service of such.