Judge: Anne Hwang, Case: 21STCV26138, Date: 2024-05-16 Tentative Ruling

Case Number: 21STCV26138    Hearing Date: May 16, 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 15, 2021, Plaintiff Francesco Ferrario (“Plaintiff”) filed a complaint against Defendants Bjorn David Lund (“Defendant”) and Does 1 to 10 for negligence from a motor vehicle accident.

On March 4, 2024, the case was called for trial at 8:30 a.m. and counsel for Plaintiff did not appear. Plaintiff had been ordered to appear personally. Upon oral request by Defendant, the Court dismissed the complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(5). (Min. Order, 3/4/24.)

On March 4, 2024, Plaintiff filed the instant motion to vacate the dismissal. Defendant opposes and Plaintiff replies.

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.)

“Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: 

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. 

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. 

(C) Grant other relief as is appropriate.” 

(Code Civ. Proc. 473(c)(1).)  

DISCUSSION

            Procedurally, the present motion is timely because it was filed within six months after the case was dismissed.

            The Declaration of Plaintiff’s counsel, Eamon Jafari, states that trial in this case was originally set for February 23, 2024. (Jafari Decl. ¶ 2.) However, because there were no trial courts available that day, trial was continued to March 4, 2024. Plaintiff learned that one of his experts was unavailable that day and conferred with Defendant about continuing trial. (Id. ¶ 5.) It appears the parties agreed to continue trial orally at the March 4, 2024 trial date, for September 18, 2024. (Id. ¶ 6–7.) Plaintiff’s co-counsel, Jacob Gould agreed to appear at the March 4, 2024 trial since Mr. Jafari had to appear at a trial setting conference at the Pomona Courthouse at 9:00 a.m. that day. (Id. ¶ 8.) However, on March 4, 2024, at 6:54 a.m., Mr. Gould contacted Mr. Jafari informing him he was ill and could not personally appear. (Id. ¶ 9; Gould Decl. ¶ 3.) Mr. Jafari then drove to the Spring Street Courthouse. At 8:25 a.m., while in traffic, Mr. Jafari attempted to appear remotely using the LA Court Connect App but heard no audio. (Jafari Decl. ¶ 11.) As a result, Mr. Jafari was unable to timely appear in-person. (Id. ¶ 16.)

            In opposition, Defendant questions the credibility of Plaintiff’s counsels’ account. However, Plaintiff’s counsel declared under penalty of perjury that due to a last-minute illness, he was unable to appear for trial in-person, thus causing the dismissal. Therefore, the Court finds that this scenario involved surprise due to the abrupt nature of the illness. Defendant seeks $6,404.22 in fees and costs for appearing at the trial and for filing this opposition. This amount exceeds the values in section 473(c) and appears to reflect fifteen (15) hours to draft this opposition and three hours appearing at the trial. (Opp., 8.) Based on the above, the Court declines to impose a penalty, since it appears the non-appearance was due to an unforeseen circumstance.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to vacate the dismissal. Trial is set for July 8, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. All trial counsel are ordered to appear personally at 8:30 a.m.

All discovery remains closed.

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