Judge: Anne Hwang, Case: BC705765, Date: 2024-07-29 Tentative Ruling

Case Number: BC705765    Hearing Date: July 29, 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

Plaintiff Ernesto Figueroa filed this action arising out of a dog bite on May 19, 2018 against Defendants Robert Harang, Robin Harang, Susana Bernard, and Does 1-20.  

On June 14, 2021, Cross Complainant Susannah Bernard aka Susana Bernard (“Cross Complainant”) filed a First Amended Verified Cross Complaint (FACC) against Cross Defendants Ronald Harang, Robin Harang, Shawdae Harang, Assad Ali, Yvette Geater, and Roes 1-20.

On February 6, 2024, at an OSC re: dismissal for failure to enter default judgments on the complaint and cross-complaint, the Court ordered the amended cross complaint dismissed without prejudice. (Min. Order, 2/6/24.)

On June 5, 2024, Cross-Complainant filed the instant motion under Code of Civil Procedure section 473(b) setting aside and vacating the dismissal on February 6, 2024.

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

            As an initial matter, this motion is timely because it was filed within six months after the cross complaint was dismissed.

            The Declaration of Chima A. Anyanwu, Cross-complainant’s counsel (“Counsel”), states that on January 30, 2024, a default package with proposed default judgment was filed. However, “[o]n February 6, 2024, I failed to attend a scheduled Order to show Cause, regarding failure to enter Default judgment against Cross Defendants. My failure to attend the February 6, 2024 hearing was due to my mistake, surprise, inadvertence, and or excusable neglect. There was a heavy rain fall on February 5, 2024 through the early morning hours of February 6, 2024. Due to water leakage from a section of the ceiling of my bedroom area, a section of the ceiling fell inside the bedrooms area in the early morning hour. Suddenly, I was left with an unexpected emergency of moving debris from the fallen ceiling, covering the roof and subsequently looking for roofers. Consequently, I missed attendance of the February 6, 2024 hearing. Hence, the Court dismissed Defendant's Amended Cross-complaint due to my failure to attend the hearing.” (Anyanwu Decl. ¶¶ 4-6.)

            Counsel also contends they have attended all hearings set by the Court prior to February 6, 2024. (Anyanwu Decl. ¶ 8.)

            Therefore, based on the declaration, the Court finds that Counsel’s absence at the OSC was due to surprise.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Cross-Complainant’s motion to set aside the dismissal.

The Court sets an Order to Show Cause Re: dismissal for failure to enter default judgment on the cross-complaint for September 26, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. Any default package must be submitted at least five court days prior to the hearing.

Cross-Complainant to provide notice and file a proof of service of such.