Judge: Anne Hwang, Case: 21STCV19598, Date: 2024-01-08 Tentative Ruling

Case Number: 21STCV19598    Hearing Date: March 5, 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 July 25, 2023, this case was called for an Order to Show Cause Re: Failure to Enter Default Judgment. Counsel for Plaintiffs Bryan Pacheco and Franibel Duarte (Plaintiffs), did not appear. As a result, the Court ordered the complaint dismissed without prejudice. (Minute Order, 7/25/23.)

On October 3, 2023, Plaintiffs filed a motion to vacate the dismissal, set to be heard January 8, 2024. On the date of the hearing, counsel for Plaintiffs failed to appear, despite being registered to appear via Court Connect. On the Court’s own motion, the motion was placed off-calendar. (Min. Order, 1/8/24.)

On January 22, 2024, Plaintiffs filed the instant amended motion, again seeking relief from the July 25, 2023 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 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 because it was filed within six months after the case was dismissed. The Declaration of Roberto Dominguez Quiroga states that he was filing and appearing for hearings to enter default judgment against Defendant Yesenia Beltran before the case was dismissed. (Quiroga Decl. ¶ 8–11.) He declares that from June 17, 2023 to July 9, 2023, he took a leave of absence and other attorneys were assigned the present case. (Id. ¶ 12–13.) After the OSC was continued to July 25, 2023, Counsel’s office failed to calendar the hearing in the firm’s calendar. (Id. ¶ 16.) A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Therefore, based on counsel’s declaration, the Court grants the motion to vacate the dismissal.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiffs’ motion to vacate the dismissal.  

The Court sets an Order to Show Cause Re Failure to Enter Default Judgment for April 9, 2024  at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

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