Judge Anne Hwang, Case Number: 22STCV24422, Date: 2024-05-24 Tentative Ruling

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.

On July 28, 2022, Plaintiff Diana Sarkisyan (“Plaintiff”) filed a complaint against Defendant Cynthia Eccles (“Defendant”) for negligence from a motor vehicle accident.

On February 9, 2024, the case was called for trial at 8:30 a.m. and counsel for Plaintiff did not appear. Upon oral request by Defendant, the Court dismissed the complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(5). (Min. Order, 2/9/24.)

On May 10, 2024, Plaintiff filed the instant motion to set aside the dismissal. No opposition has been filed.

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.)

First, there is no proof of service attached to this motion. A moving party’s failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions – notice and an opportunity to be heard.¿ (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Therefore, because there is no proof that Defendant has received notice of this motion, it is procedurally defective.

Second, there is no declaration of counsel in support of this motion, and thus no evidence in support.[1]

[1] “ ‘In law and motion practice, counsel will frequently prepare a summary of facts in support of or in opposition to the motion. This may be part of a memorandum of points and authorities or consist of a separate statement of facts. Such a practice is useful as long as each fact mentioned is supported by admissible evidence and preferably if each such factual allegation is followed by an appropriate reference to the evidence accompanying the motion or opposition. However, absent such support in the evidence submitted, the court must disregard ‘facts’ contained in an unverified statement. [Citation.] The only evidence the trial court should have considered and which we may consider here is that contained in the declarations filed in support of and in opposition to the motion. The matters set forth in the unverified ‘Statement of Facts’ and in memoranda of points and authorities are not evidence and cannot provide the basis for the granting of the motion.” (Smith, Smith & Kring v. Superior Court (Oliver) (1997) 60 Cal.App.4th 573, 577–78.)

DEPT:	32
HEARING DATE:	May 24, 2024
CASE NUMBER:	22STCV24422
MOTIONS:	Motion to Set Aside Dismissal
MOVING PARTY:	Plaintiff Diana Sarkisyan
OPPOSING PARTY:	None