Judge: Anne Hwang, Case: 22STCV31697, Date: 2024-12-02 Tentative Ruling

Case Number: 22STCV31697    Hearing Date: December 2, 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 15, 2024, the Court granted Defendant Los Angeles County Metropolitan Transportation Authority’s (“MTA”) unopposed motion to dismiss under Code of Civil Procedure section 581(f)(2). The Court found that Plaintiff Ana Olascoaga Aviles (“Plaintiff”) failed to amend her complaint in time after MTA’s demurrer was sustained with leave to amend on November 16, 2023. (Min. Order, 4/15/24.) As a result, Plaintiff’s action was dismissed with prejudice. (Ibid.)

On October 15, 2024, Plaintiff filed the instant motion for relief under Code of Civil Procedure section 473(b), based on her counsel’s inadvertence, mistake, surprise, and excusable neglect. No opposition has been filed.  

LEGAL STANDARD

Under Code of Civil Procedure section 473(b), the Court may relieve a party from an order or other proceeding 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.

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 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

            Procedurally, the present motion pursuant to Code of Civil Procedure section 473b under the mandatory provision is timely because the dismissal took place on April 15, 2024, and Plaintiff filed this motion on October 15, 2024—exactly six months later. Assuming this motion is construed under the discretionary provision of section 473(b), Plaintiff has not shown that this motion was made “within a reasonable time.”

Turning to the merits, the declaration of George Gary Besnilian, Plaintiff’s counsel, states that MTA’s motion to dismiss was emailed to his personal email which he did not see. (Besnilian Decl. ¶ 3.) He further states: “[a]s a result of my misunderstanding and failure to appear, the case was dismissed for non-appearance and noncompliance.” (Id. ¶ 4.)

However, based on the April 15, 2024 minute order, the case was not dismissed for Plaintiff’s non-appearance, but rather because she failed to timely file an amended complaint or motion for leave to amend the complaint. (See Min. Order, 4/15/24.) Plaintiff’s counsel’s declaration does not address this and therefore fails to show how the dismissal was the result of mistake, inadvertence, surprise, or neglect (or excusable neglect). Therefore, Plaintiff fails to show that either the discretionary or mandatory provisions of section 473(b) apply.[1] As a result, the motion to set aside the dismissal is denied.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff’s Motion to Set Aside and Vacate Order to Dismiss.    

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