Judge: Anne Hwang, Case: 21STCV28144, Date: 2024-03-20 Tentative Ruling

Case Number: 21STCV28144    Hearing Date: March 20, 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 Ken Robinson (“Plaintiff”) filed a complaint against Defendants Bright Path Center, Lanika Beard, and Does 1 to 20 for alleged injuries resulting from bed bugs. On May 1, 2023, Bright Path Center filed an answer. On August 2, 2023, the Court held an OSC re: dismissal for failure to serve Defendant Lanika Beard. Plaintiff represented that both defendants had been served and would file a proof of service. The Court then set an OSC re: dismissal and/or sanctions for failure to serve the summons and complaint within two years of filing the complaint.

 On September 7, 2023, Plaintiff filed proof of substitute service of the summons and complaint on Bright Path Center and Lanika Beard that occurred on January 26, 2023.

On September 13, 2023, Plaintiff’s counsel filed a declaration in response to the upcoming OSC.

On September 20, 2023, the Court held the OSC re: dismissal and/or sanctions for failure to serve. The Court determined that Plaintiff’s counsel’s declaration failed to provide good cause pursuant to California Rule of Court 2.30(b). Plaintiff requested to be heard and the matter was placed on second call. The Court then imposed $250 in monetary sanctions against Plaintiff’s counsel.

On December 4, 2023, Plaintiff’s counsel filed this motion to set aside the order of sanctions pursuant to Code of Civil Procedure section 473(b).[1] No opposition has been filed.

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party or legal representative from an order or other proceeding 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 order. However, the mandatory provision does not apply since the order imposing monetary sanctions was not the equivalent of a dismissal motion.

            The Declaration of Ilan N. Rosen Janfaza states that counsel mistakenly believed that the answer filed on May 2, 2023 pertained to both defendants. Counsel fails to show excusable neglect since there is no stated reason why counsel believed the answer pertained to both defendants. (Janfaza Decl. ¶ 5.) Therefore, it does not appear a reasonably prudent person would have made this error.

            Counsel further declares that counsel failed to serve both plaintiffs within 60 days “due to a mistake by counsel and not realizing that this honorable court would impose sanctions for failure to serve within 60 days, as this department’s prior judge did not sanction for failure to serve within 60 days and offered always one last opportunity for a case to be served prior to the next hearing date.” (Janfaza Decl. ¶ 3.) Counsel further declares that he “mistakenly believed that all proofs of service were filed with this honorable court prior to the August 2, 2023 hearing.” (Id. ¶ 6.)

As an initial matter, California Rule of Court 3.110(b) requires the complaint to be served on all named defendants and proofs of service on those defendants to be filed within 60 days after the filing of the complaint. California Rule of Court 2.30(b) provides that the court may order a person, after written notice and an opportunity to be heard, to pay reasonable monetary sanctions to the court for failure without good cause to comply with the applicable rules. These rules were in effect when the complaint in this case was filed on July 30, 2021. On September 7, 2023, a proof of substituted service was filed, attaching a declaration of diligence indicating four attempts of personal service in January 2023. No other evidence was provided of attempts to serve within 60 days of filing the complaint, or at any time during 2021 or 2022. Indeed, no attempt at service was apparently made until the day after the Final Status Conference in this case on January 13, 2023, when the Court vacated dates due to Plaintiff’s failure to serve. (See Declaration of Diligence of Proof of Substituted Service of Lanika Beard [noting attempts on January 14, 17, 20, 23 of 2023].) Plaintiff was then granted over 6 more months and the matter was set for an OSC re Dismissal for Failure to Serve on August 2, 2023. Plaintiff did not file the proofs of service until September 7, 2023. Accordingly, the Court did not find good cause and ordered monetary sanctions.

The Court notes that even under the facts as represented by counsel that the prior judge “offered one last opportunity,” counsel did not comply by not filing the proofs of service prior to August 2, 2023. Moreover, counsel offers no explanation for the “mistaken[] belie[f]” that the proofs of service were filed prior to August 2, 2023. “ ‘Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the ‘mistake’ is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law…’ [citation omitted]. Further, ‘[t]he term ‘surprise,’ as used in section 473, refers to ‘some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ [citation omitted]. Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-30 [citations omitted].) To the extent that counsel’s reliance on a prior judge’s “practice,” the existence of which there is insufficient evidence, constitutes excusable neglect, counsel does not explain the mistake in not following that judge’s practice.

            Accordingly, the Court denies the motion to set aside the order imposing monetary sanctions.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff’s motion to set aside the September 20, 2023 order imposing monetary sanctions.

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