Judge: Anne Hwang, Case: 22STCV28983, Date: 2024-07-26 Tentative Ruling

Case Number: 22STCV28983    Hearing Date: July 26, 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 September 6, 2022, Plaintiff Karen Harutyunyan (“Plaintiff”) filed a complaint against Defendants IKEA US Inc. and IKEA North America Services LLC. On May 9, 2024, the matter was set for an Order to Show Cause re Dismissal for Failure to Request Entry of Default and Sanctions for Failure to Appear. No appearance was made and the case was dismissed. On May 30, 2024, 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.) 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.

            Counsel for plaintiff asserts that the April 4, 2024 Order to Show Cause hearing was miscalendared and counsel therefore failed to appear. (Dec. ¶ 3.) Counsel further declares that at that hearing, the Court continued the order to show cause hearing to May 9, 2024, but counsel did not receive notice of the continuance. The Court notes that a certificate of mailing shows that notice of the May 9, 2024 hearing was sent to Plaintiff’s counsel. However, in light of counsel’s declaration under penalty of perjury that counsel did not receive notice of the continued hearing, the Court grants the motion.

CONCLUSION AND ORDER

Therefore, the Court GRANTS the motion to set aside dismissal. The matter is set for an Order to Show Cause Re Dismissal for Failure to Request Entry of Default for September 23, 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.