Judge: Anne Hwang, Case: 21STCV22182, Date: 2023-08-17 Tentative Ruling

Case Number: 21STCV22182    Hearing Date: August 17, 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

              Plaintiffs Patricia Warnock and Patrice Chapman (“Plaintiffs”) through their legal representative, Emmanuel Nwabuzor of Emmanuael Nwabuzor, APC, move to set aside the Court’s order of December 13, 2022, in which the Court dismissed Plaintiffs’ complaint for failure to appear at trial.  It is noted that Plaintiffs jointly filed the motion to set aside/vacate dismissal on May 19, 2023. Thereafter, Plaintiff Patrice Chapman filed a separate motion to set aside/vacate dismissal on June 2, 2023. Because the motions are nearly identical, the Court shall treat both motions as one. No opposition has been filed.

ANALYSIS

Per Code of Civil Procedure § 473, subdivision (b), 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 Ca.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, Plaintiffs advance the declaration of their counsel, Emmanuel Nwabuzor (“Counsel”).  Counsel avers that he failed to keep track of important court dates, including the final status conference and the trial date of December 13, 2023, because his former file manager inadvertently classified this case as closed within the firm’s internal records. (Nwabuzor Decl. ¶¶ 4-7.)  It was only after discovery of the court-ordered dismissal that Counsel learned of his firm’s mistake, inadvertence and excusable neglect. (Id. at ¶¶ 8-9.) Counsel avers that his clients have a meritorious case, and the facts at issue are not complicated. (Id. at ¶¶ 10-11.) Further, Counsel attests that the Plaintiffs did not contribute to Counsel’s error. (Id. at ¶ 12.) Based on the declaration submitted, Counsel has demonstrated that his failure to appear at trial on behalf of the Plaintiffs was a result of a mistake, inadvertence, and neglect on his part. (See Renteria v. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 911 [finding excusable neglect where the attorney relied on a member of their staff “to perform certain tasks. . ., and the staff member errs.”])

CONCLUSION AND ORDER

Accordingly, the Court grants Plaintiffs’ motions to set aside the Order of Dismissal and vacates the order of December 13, 2022 dismissing Plaintiffs’ Complaint for the reasons stated above. 

Plaintiffs are ordered to provide notice of this Order and file proof of service of such.