Judge: Anne Hwang, Case: 21STCV27381, Date: 2024-10-17 Tentative Ruling

Case Number: 21STCV27381    Hearing Date: October 17, 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

MOTION

Plaintiff, John Elias (“Plaintiff”) filed this action against Defendants American Multi-Cinema, Inc., a Missouri Corporation, (“Multi-Cinema”) and Brian Johnson (“Johnson”) (collectively, “Defendants”) for injuries sustained when Plaintiff slipped and fell on a wet floor near soda vending machines allegedly owned and operated by Defendants.

Plaintiff through his legal representative, Boris Briskin, Esq. of Ellis Law Corporation, moves to set aside the Court’s order of April 26, 2024, in which the Court dismissed Plaintiff’s complaint without prejudice per a notice of settlement filed by Plaintiff after Plaintiff failed to appear at the Hearing on the Order to Show Cause Re: Dismissal (Settlement).   

ANALYSIS 

            Per Code of Civil Procedure section 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, the Court dismissed Plaintiff’s complaint in its order of April 26, 2024 and the Clerk of the Court served notice of the Court’s Order of Dismissal on the same date to Counsel for Plaintiff, Andrew L. Ellis of Ellis Law Corporation.  Plaintiff filed this motion on September 18, 2024, which is less than six months after the Court dismissed Plaintiff’s complaint and served notice of the dismissal.  Thus, Plaintiff’s request for relief is timely.   

            Turning to the merits of the motion, Plaintiff advances the declaration of Boris Briskin, Esq. (“Counsel”). Counsel avers that they failed to appear at the hearing on the Order to Show Cause re: Dismissal on April 26, 2024 due to counsel’s neglect and mistake in failing to calendar the hearing or to instruct anyone at Ellis Law Corporation to calendar the hearing. (Declaration of Boris Briskin, Esq., ¶¶ 3-8.) Defendants have not opposed this motion. Counsel demonstrates that their failure to appear at the Order to Show Cause hearing was a result of a mistake, inadvertence, and neglect on their part. 

CONCLUSION AND ORDER 

Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal. The matter is set for an Order to Show Cause Re Dismissal (Settlement) for November 18, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.   

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.