Judge: Anne Hwang, Case: 21STCV22447, Date: 2023-10-23 Tentative Ruling

Case Number: 21STCV22447    Hearing Date: October 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

BACKGROUND

On June 16, 2021, Plaintiffs Richard Martinez, Maria Velasco, Selene Vega, Richard M. Velasco, Elijah Velasco, Ezra M. Velasco, and Raul Velasco (Plaintiffs) filed a complaint against Defendants Gilberto Lopez and Does 1 to 20 for injuries resulting from a motor vehicle accident.

On June 21, 2023, the Court held an OSC Re: Dismissal for Failure to File Proof of Service/ alternatively Trial Setting Conference. Counsel for Plaintiffs did not appear and the Court dismissed the action without prejudice. (Min. Order, June 21, 2023.)

On September 27, 2023, Plaintiffs filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 473(b).

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.  

            Here, the declaration of Terrence Swinson (Counsel) states that in November 2022, he became the third attorney to be involved in this case. (Swinson Decl. ¶ 8.) He states that Plaintiffs’ first attorney initially had issues locating and serving the complaint on Defendant. He states that at a November 30, 2022 hearing, he advised the Court he intended to proceed with defaults. He believed that the OSC would be discharged after he submitted the default judgement packet. (Id. ¶ 11.) However, due to an office error, the default packet and proof of service was not filed with Counsel’s e-filing service provider. Thinking the packet was submitted properly, Counsel took the June 21, 2023 off his calendar, and thus, failed to appear.

            The Court finds that Plaintiffs have a reasonable excuse and therefore grants the motion.

CONCLUSION AND ORDER

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

The Court sets the matter for an Order to Show Cause Re: Dismissal for Failure to File Proof of Service/ alternatively Trial Setting Conference for November 30, 2023 at 8:30 a.m.

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