Judge: Anne Hwang, Case: 21STCV32658, Date: 2024-02-20 Tentative Ruling

Case Number: 21STCV32658    Hearing Date: February 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 September 2, 2021, Plaintiff Tommy Faavae (“Plaintiff”) filed a complaint against Defendants Brett Duennermann and Does 1 to 10 for an alleged assault and battery.

On October 18, 2021, Brett Duennermann (“Cross-complainant”) filed a cross complaint against Plaintiff.

On November 6, 2023, the case was called for trial and counsel for Cross-complainant did not appear. The Court then dismissed the cross complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(3). (Min. Order, 11/6/23.)

On January 3, 2024, Cross-complainant 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 cross-complaint was dismissed. The Declaration of Daniel W. Doyle, Cross-complainant’s counsel, (Counsel) states that on the day of the trial, he failed to confirm the trial department location and mistakenly arrived at the Stanley Mosk Courthouse. (Doyle Decl. ¶ 5.) Counsel then learned of his mistake, and immediately emailed Plaintiff’s counsel, and his assistant, who was unable to contact the clerk. (Id. ¶ 6.) Counsel declares he had submitted all signed documents and finalized trial documents pursuant to the Court’s Standing Order, and was prepared for trial. (Id. ¶ 4.)

            Based on Counsel’s declaration, the Court finds Cross-complainant has established he failed to attend the November 6, 2023 trial due to his mistake.

            The Court notes that no motion has been made with regard to the complaint, and no opposition has been filed.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant/Cross-complainant Brett Duennermann’s motion to set aside the dismissal of the cross-complaint.  

            The Court sets the matter for Jury Trial on March 20, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. All trial counsel are ordered to appear personally with their trial binders.

Cross-complainant to provide notice and file a proof of service of such.