Judge: Anne Hwang, Case: 22STCV22862, Date: 2024-05-21 Tentative Ruling

Case Number: 22STCV22862    Hearing Date: May 21, 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 July 15, 2022, Plaintiff Adolfo Muro Arambula (“Plaintiff”) filed a complaint against Defendants Southern California Pizza, Pizza Hut, Maria Fernanda Hernandez Mendez, and Does 1 to 20 for negligence related to a motor vehicle accident. The complaint alleges that Maria Fernanda Hernandez Mendez was driving and acting within the scope of her employment with Southern California Pizza and Pizza Hut. (Complaint, 4.)

On February 28, 2024, Plaintiff and Pizza Hut filed a stipulation to dismiss Pizza Hut from this case on the representation that the subject Pizza Hut branded restaurant at issue was owned by franchisee Southern California Pizza Company, LLC. (Stip. filed 2/28/24, ¶ 2.) The parties agreed to toll the statute of limitations while Plaintiff investigates and preserves the right to assert claims against Pizza Hut in the future.

Also on February 28, 2024, Plaintiff filed a request for dismissal, dismissing the complaint without prejudice.

On February 29, 2024, at an OSC re: monetary sanctions for failure to enter default as to Defendant Pizza Hut, the Court ordered Pizza Hut to be dismissed from the complaint without prejudice, pursuant to Plaintiff’s oral request. (Min. Order, 2/29/24.)

On March 5, 2024, Plaintiff filed this motion to set aside and vacate the dismissal of the entire complaint, entered on February 29, 2024, pursuant to Code of Civil Procedure section 473(b). 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.)   

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) 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.) 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.) Additionally, since an attorney is responsible for supervising the work of legal assistants, an error by an employee is considered the attorney’s error for purposes of section 473(b) relief. (Hu v. Fang (2002) 104 Cal.App.4th 61, 64 [paralegal’s error in calendaring an OSC hearing was attributable to the attorney and subject to mandatory relief].)

DISCUSSION

            Procedurally, the present motion is timely because it was filed within six months after the dismissal.

            Plaintiff asserts that after the February 29, 2024 OSC hearing, Plaintiff filed a Request for Dismissal with the Court and failed to check the “Other” box on CIV-110 form, Section 1. b. (6) to indicate that the dismissal was only as to Defendant Pizza Hut. (Medina Decl. ¶ 10.) Therefore, Plaintiff contends he inadvertently dismissed the entire case.

            The request for dismissal that Plaintiff describes appears to have been filed on February 28, 2024, and was entered on February 29, 2024. In it, Plaintiff requested that the complaint be dismissed without prejudice. The Declaration of Ivan Medina states that this was a mistake as Plaintiff intended only to dismiss Pizza Hut pursuant to the stipulation filed that same day. (Medina Decl. ¶ 10.) Therefore, because it appears this dismissal was due to mistake and inadvertence, the motion to set aside the dismissal entered on February 29, 2024 as to the entire complaint, is granted. This order does not affect the order of dismissal filed and entered on February 29, 2024 that applies only to Pizza Hut.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to set aside dismissal. Trial Setting Conference is scheduled for June 20, 2024, at 08:30 a.m. in Department 32, Spring Street Courthouse.

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