Judge: Anne Hwang, Case: 22STCV19942, Date: 2024-10-23 Tentative Ruling

Case Number: 22STCV19942    Hearing Date: October 23, 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 June 17, 2022, Plaintiff Wawanesa General Insurance Company (“Plaintiff”) filed a complaint against Defendant Kodi Robbins (“Defendant”) and Does 1 through 20. The complaint alleges motor vehicle negligence. This is a subrogation action for bodily injury and property damages arising out of a vehicle collision which occurred on January 23, 2022, involving the plaintiff’s insured Eugene Brusioovsky and the defendant, Kodi Robbins.

A Final Status Conference was then scheduled for December 1, 2022. Plaintiff appeared and there was an Order to Show Cause Re: Dismissal for Failure to Enter Default set for January 3, 2024.

The Order to Show Cause Re: Dismissal for Failure to Enter Default set for January 3, 2024 was continued to April 23, 2024 which was then continued again to July 24, 2024.

On July 24, 2024, the Court dismissed the case. (See Min. Order 7/24/24.)

On August 9, 2024, Plaintiff filed the instant motion, seeking to set aside the dismissal. No opposition has been filed.

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.)¿¿¿ 

“ ‘A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.’ [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [finding excusable mistake where counsel provided a settlement offer for judgment “against” his client, as opposed to “in favor of”, since this was a clerical mistake].)  

However, mere neglect or negligence is not a sufficient ground for relief. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 251–52 [finding unexcused neglect where party failed to provide evidence that it possessed months before, in opposition to a summary judgment motion]; Martin v. Johnson (1979) 88 Cal.App.3d 595, 606–607 [no abuse of discretion in refusing to vacate summary judgment due to attorney's error in submitting declarations not within the personal knowledge of the declarant].) 

Relief under section 473(b) is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. With an attorney affidavit of fault, there is no requirement that the attorney’s mistake or inadvertence be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) The affidavit also does not need to contain a reason for the mistake. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)  

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]”, as well as “discretionary dismissals based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion.” (Id.)  

DISCUSSION

Procedurally, the present motion is timely as dismissal was entered on July 24, 2024, and 473(b) relief was sought on September 6, 2024, which was within six months after the case was dismissed.   

The Declaration of Mark R. Nivinskus, Plaintiff’s counsel (“Counsel”), states the following: “due to the Ransomware attack causing the LA Connect website to be down, the plaintiff’s appearing counsel was not able to [] appear on July 24, 2024.” (Nivinskus Decl. ¶ 4.) Counsel further states “[i]t was only due to the LAConnect website being down due to the Ransomware attack and my error, inadvertence, or mistake that has resulted in the court’s dismissal without prejudice on July 24, 2024.” (Id. at ¶ 5.) The motion refers to a declaration of Silvia Diaz, which is not attached. Nonetheless, the Court construes the declaration to assert that counsel attempted to log on, but was unable to appear, and therefore the dismissal was the result of mistake. The Court grants the motion.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Plaintiff’s Motion for Order Vacating and Setting Aside Dismissal. The matter is set for an Order to Show Cause re Monetary Sanctions/ Dismissal for Failure to Enter Default for December 3, 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.