Judge: Anne Hwang, Case: 21STCV37613, Date: 2023-10-19 Tentative Ruling

Case Number: 21STCV37613    Hearing Date: October 19, 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 October 12, 2021, Plaintiff Armando Rodriguez (Plaintiff) filed a complaint against Defendants Yadira Moreno Martinez and Does 1 to 30 for negligence surrounding a motor vehicle accident.   

On April 11, 2023, the case was called for trial. Counsel for plaintiff did not appear. The Court then dismissed the case without prejudice pursuant to Code of Civil Procedure section 581(b)(3). (Min. Order, April 11, 2023.)

On June 28, 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.

            This case was dismissed pursuant to Code of Civil Procedure section 581(b)(3) which states that an action may be dismissed “[b]y the court, without prejudice, when no party appears for trial following 30 days' notice of time and place of trial.”

            The Declaration of Albert Elmassian, Plaintiff’s counsel, states he did not attend the March 28, 2023 final status conference or the April 11, 2023 jury trial because he failed to calendar the dates. (Elmassian Decl. ¶ 5.) Plaintiff’s counsel asserts this was his mistake and apologizes for his “inability to get the very simple and mindless task of calendaring the important dates and fulfilling [his] obligations to appear at hearings prepared.” (Id. ¶ 8.) The Court finds that Plaintiff has established an excusable ground for relief and grants the motion.

CONCLUSION AND ORDER

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

            The
Court sets an Order to Show Cause on December 06, 2023 at 830 AM in Department
32 regarding the dismissal of the action, and/or the imposition of sanctions
against Counsel for Plaintiff, for failing to serve the summons and complaint
within two years of commencing the action. 
(See Code Civ. Proc., §§ 128, 177.5, 583.410 & 583.420, subd.
(a)(1); Cal. Rules of Court, rule 2.30. The Court may dismiss the action, and/or impose sanctions against
Counsel for Plaintiff, at the time of the Order to Show cause hearing if
counsel or parties fail to appear, or fail to give good cause for the delay in
serving the summons and complaint. Matter is alternatively set for Trial Setting Conference. 

            Plaintiff shall give notice of the Court’s order and file a proof of service of such.