Judge: Anne Hwang, Case: 22STCV14201, Date: 2024-05-07 Tentative Ruling

Case Number: 22STCV14201    Hearing Date: May 7, 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 April 28, 2022, Plaintiff Ashorina Youhanna (Plaintiff) filed a complaint against Defendants Charlotte LaBarre and Does 1 to 10 for negligence related to a motor vehicle accident.  

On October 26, 2023, the case was called for trial and there were no appearances. As a result, the Court dismissed the complaint filed by Plaintiff pursuant to Code of Civil Procedure section 581(b)(3). (Min. Order, 10/26/23.)

On February 21, 2024, Plaintiff filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 473(b).

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

            As an initial matter, this motion is timely since it was brought within six months after the complaint was dismissed. The Declaration of Brian L. Larsen, Plaintiff’s counsel, states that he failed to calendar the October 26, 2023 trial date, and as a result did not appear. (Larsen Decl. ¶ 5.) Counsel declares: “I assume full responsibility for my mistake and apologize to the court for not timely serving said complaint and failing to properly calendar and appear at trial on October 26, 2023. Plaintiff is not in any way responsible for my failure to calendar and appear at trial on October 26, 2022, and thus should not be prejudiced with the dismissal of the entire action.” (Id. ¶ 6.) A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.)  

Therefore, because a calendaring error caused Plaintiff’s counsel to not appear for trial, the motion to set aside the dismissal entered on October 26, 2023, is granted.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Plaintiff’s motion to set aside the dismissal. The matter is set for an Order to Show Cause Re Monetary Sanctions or Dismissal for Failure to Serve for June 24, 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.