Judge: Anne Hwang, Case: 21STCV14547, Date: 2023-09-20 Tentative Ruling

Case Number: 21STCV14547    Hearing Date: January 10, 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 April 16, 2021, Plaintiff Safeco Insurance Company of Illinois (“Plaintiff”) filed a complaint alleging that Defendants All American Creations, LLC, D. Vida Construction & Painting, Inc. were negligent causing damage to the property of Plaintiff’s insured, Robina Peanh.

On June 7, 2021, Plaintiff filed a proof of service of Defendant D. Vida Construction & Painting. On November 22, 2022, Plaintiff filed an amendment to the complaint substituting defendants for Does 1 through 4, and on that same day dismissed Defendant D. Vida Construction & Painting, Inc.

            On December 1, 2022, counsel for Plaintiff filed a declaration that counsel was diligently attempting to complete personal service.

            On December 20, 2022, counsel for Plaintiff filed a notice of change of handling attorney.

            On December 30, 2022, there was no appearance by counsel for Plaintiff nor proof of service in the case. Accordingly, the Court ordered the complaint to be dismissed without prejudice.

            On June 22, 2023, Plaintiff filed a “Motion to Reopen the Case,” that was set to be heard September 20, 2023. On that date, there was no appearance by either side and no communication to the Court. The matter was then taken off calendar. (Min. Order, 9/20/23.)

On December 15, 2023, Plaintiff filed the instant “Motion to Reopen the Case,” which lacked a memorandum of points and authorities. The motion argues that Plaintiff filed a declaration on December 1, 2022 which purported to request the OSC hearing be vacated to allow for further attempts to serve defendants, and Plaintiff did not receive notice of the Court’s disposition of said request. The motion further asserts that Plaintiff is unable to serve defendants and is in a position to file an application for order to serve via publication.

DISCUSSION

            The motion cites no legal authority for Plaintiff’s request in paragraphs 1 through 6, nor provides any attorney declaration regarding any mistake, inadvertence, surprise, or excusable neglect, as might warrant relief pursuant to Code of Civil Procedure 473(b). Accordingly, the “motion to reopen case” is denied.

            However, the Court notes that when the case was dismissed, the complaint had been filed less than two years prior. “[A] delay of less than two years in service of the summons and complaint is not a ground for dismissal under [Code of Civil Procedure section 583.410.” (Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1437.)

CONCLUSION AND ORDER

The Court sets aside the December 30, 2022 dismissal and reinstates proceedings. The matter will be set for an Order to Show Cause Re: dismissal/ monetary sanctions for failure to serve/ alternatively Trial Setting Conference for March 11, 2024 at 8:30 a.m.

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