Judge: Anne Hwang, Case: 22STCV32518, Date: 2024-09-30 Tentative Ruling

Case Number: 22STCV32518    Hearing Date: September 30, 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 October 4, 2022, Plaintiff Genaro Vasquez, Jr. (“Plaintiff”), an adult with a disability by and through his guardian ad litem, Genaro Vasquez, filed a complaint for negligence based on a motor vehicle accident.

On April 2, 2024, this case was called for trial and counsel for Plaintiff did not appear, and there was no service in this case. As a result, the Court dismissed the complaint without prejudice under Code of Civil Procedure section 581(b)(3).  

On August 21, 2024, Plaintiff filed the instant motion to vacate the April 2, 2024 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.)   

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 is timely because it was filed within six months after the case was dismissed. The Declaration of Angella S. Farokhzad, Plaintiff’s counsel, states that: “[d]ue to Plaintiff’s counsel’s inadvertence and mistake, the hearing date was not scheduled on counsel’s calendar, and no appearance was made at the hearing on March 19, 2024. Trial remained set for April 2, 2024 and again, due to Plaintiff’s counsel’s inadvertence and mistake, the hearing date was not scheduled on counsel’s calendar, and no appearance was made on April 2, 2024.” (Farokhzad Decl. ¶ 4.) Plaintiff’s counsel also declares the case has settled and is pending approval of a compromise for an adult with a disability. (Farokhzad Decl. ¶ 8.)

A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Accordingly, the Court grants the motion. However, the Court notes that no guardian ad litem has been appointed for Plaintiff.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to set aside the dismissal.  The matter is set for an Order to Show Cause re Monetary Sanctions/ Dismissal for Failure to Serve, Alternatively, Trial Setting Conference for October 30, 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.