Judge: Anne Hwang, Case: 21STCV28026, Date: 2024-01-09 Tentative Ruling

Case Number: 21STCV28026    Hearing Date: January 9, 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 30, 2021, Plaintiff Destiny Serna (Plaintiff) filed a complaint against Defendants Charles Andre McKay, Sr., Charles A. McKay, and Does 1 to 100, for injuries resulting from a motor vehicle accident.

On August 2, 2023, the Court held an Order to Show Cause Re: dismissal for failure to serve/ alternatively trial setting conference. Counsel for Plaintiff did not appear, and the Complaint was dismissed without prejudice. (Min. Order, 8/2/23.)

On October 18, 2023, Plaintiff filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 473(b). Defendant Charles McKay (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.)

DISCUSSION

            Procedurally, the present motion is timely because it was filed within six months after the case was dismissed. The Declaration of Daniel Geoulla states that Plaintiff failed to appear at the OSC because he failed to make sure that it was properly calendared in the firm’s calendaring system so that another associate could appear. (Geoulla Decl. ¶¶ 2–4.) A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Counsel also declares that Plaintiff personally served Defendants Charles Andre McKay, Sr. and Charles A. McKay with the complaint on August 1, 2023, but did not receive proof of service until August 31, 2023, after the case was dismissed. (Geoulla Decl. ¶ 5.) The proofs of service were filed on October 18, 2023.

In opposition, Defendant argues that Defendant will be prejudiced if the dismissal is vacated because the incident occurred on August 3, 2019, and evidence may be lost due to Plaintiff’s delay. However, Defendant does not explain any specific harm resulting from the delay. In addition, the delay in service is two days after two years from the filing of the complaint. In addition, the Court finds that based on the Declaration of Daniel Geoulla, Plaintiff has demonstrated a reasonable excuse for the dismissal.

            Therefore, the Court grants the motion to vacate the dismissal.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to vacate the dismissal. Defendants[1] are ordered to file and serve responsive pleadings within 30 days.

The Court sets a Final Status Conference for July 8, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse. 

Trial is set for July 22, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

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