Judge: Anne Hwang, Case: 21STCV30626, Date: 2023-11-02 Tentative Ruling

Case Number: 21STCV30626    Hearing Date: November 2, 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 August 18, 2021, Plaintiff Susan Fountain (Plaintiff) filed a complaint against Defendants Brian Hugh Warner and Does 1 to 10 for assault, battery, and intentional infliction of emotional distress.    

On February 15, 2023, the case was called for trial and counsel for plaintiff did not appear. The Court then dismissed the case without prejudice pursuant to Code of Civil Procedure section 581(b)(3). (Minute Order Dated 2/15/23.)

On March 17, 2023, Plaintiff filed the instant motion to set aside the dismissal.

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 Jennifer A. Clingo, Plaintiff’s counsel, (Counsel) states she did not attend the final status conference or the jury trial hearing because she did not calendar the dates when she received the Standing Order in September 2021. (Clingo Decl. ¶ 5-6.) Counsel declares that this is the first time she has failed to calendar a hearing. (Id. ¶ 7.) Counsel also states her medical condition has played a role in her mistake, inadvertence and /or neglect due to the significant pain and chronic fatigue it causes. (Id. ¶ 19-20.) In response to her condition, Counsel declares she has reduced her caseload and has prepared for the management of her cases until she fully recovers.

            Based on Counsel’s declaration, the Court finds Plaintiff has established she failed to attend the February 15, 2023 jury trial due to her mistake in calendaring the date.

CONCLUSION AND ORDER

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

            The Court sets the matter for an Order to Show Cause Re Dismissal/ Monetary Sanctions re Failure to Serve for January 3, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthosue.

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