Judge: Anne Hwang, Case: 22STCV36834, Date: 2024-09-25 Tentative Ruling

Case Number: 22STCV36834    Hearing Date: September 25, 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. 

Please note: The Court is unavailable to hear oral argument on the motion this afternoon. If all parties submit, the tentative ruling will be adopted as the order of the Court. If a party requests oral argument, the hearing will be continued to either September 30, 2024 or October 2, 2024.

TENTATIVE RULING

BACKGROUND

On May 21, 2024, this case was called for trial and counsel for Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) did not appear. As a result, the Court dismissed the complaint without prejudice under Code of Civil Procedure section 581 (b)(3).  

On August 5, 2024, Plaintiff filed the instant motion to vacate the May 21, 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 Brian P. Tapper, Plaintiff’s counsel, states the following. “Due to my inadvertence and mistake, I mis-calendared the hearing date scheduled by the Court for May 21, 2024. As a result of this calendaring error, Plaintiff failed to appear at this hearing.” (Tapper Decl. ¶ 2.) Counsel also apologizes to the Court and asserts he has put “great effort to monitor every file and properly calendar our hearing dates.” (Id. ¶ 3.) A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Therefore, based on counsel’s declaration, the Court grants the motion to vacate the dismissal.[1]

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s motion to vacate the dismissal.  

The Court sets an Order to Show Cause Re Monetary Sanctions/ Dismissal for Failure to Enter Default Judgment for October 28, 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.