Judge: Anne Hwang, Case: 21STCV07336, Date: 2023-08-23 Tentative Ruling

Case Number: 21STCV07336    Hearing Date: August 23, 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

MOTION

              Plaintiff Justin White (hereafter “Plaintiff”) through his legal representative, Ronnivashti Whitehead, Esq. (“Counsel”), moves to set aside the Court’s order of May 22, 2023, in which the Court dismissed Plaintiff’s complaint against Defendant Estate of Kacy Lloyd (“Defendant”) without prejudice. The motion is unopposed.    

ANALYSIS

Code of Civil Procedure section 473, subdivision (b), provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

            Here, Plaintiff advances the Declaration of Ronnivashti Whitehead. Counsel avers that the failure to appear at the Order to Show Cause Re: Dismissal for Failure to Serve/Alternatively Trial Setting Conference and Order to Show Cause Re: Sanctions for Failure to Serve was due to counsel’s failure to calendar the hearing. Counsel avers that counsel was recently assigned to this case after another attorney left The Barnes Firm. (Declaration of Ronnivashti Whitehead, ¶ 4.)  Counsel demonstrates the failure to appear at the Order to Show Cause was a result of a mistake, inadvertence, and neglect on counsel’s part. Counsel’s conduct and declaration submitted to the Court mandates relief from dismissal. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618)

Furthermore, Counsel’s motion was filed seven (7) court days after the Order of Dismissal was entered, which makes it timely because it was filed within six (6) months as required by statute.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s Motion to Set Aside the Order of Dismissal, and vacates the Order of May 22, 2023, dismissing Estate of Kacy Lloyd.   

 The
Court sets an Order to Show Cause on September 25, 2023, at 830 AM in Department
32 regarding the dismissal of the action, and/or the imposition of sanctions
against Counsel for Plaintiff, for failing to serve the summons and complaint
within two years of commencing the action. 
(See Code Civ. Proc., §§ 128, 177.5, 583.410 & 583.420, subd.
(a)(1); Cal. Rules of Court, rule 2.30.) 
The Court may dismiss the action, and/or impose sanctions against
Counsel for Plaintiff, at the time of the Order to Show cause hearing if
counsel or parties fail to appear, or fail to give good cause for the delay in
serving the summons and complaint.

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