Judge: Audra Mori, Case: 18STCV03869, Date: 2022-08-22 Tentative Ruling

Case Number: 18STCV03869    Hearing Date: August 22, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Brian Miller (“Plaintiff”) filed this action against defendants Tina Nails Salon, Danielle Trin (“Trin”), an individual d/b/a Tina Nails Salon; Xuan Thao Duy Nguyen (“Nguyen”), an individual d/b/a Tina Nails Salon; Hy That Ton (“Ton”), an individual d/b/a Tina Nails Salon, and Does 1 to 50 for injuries Plaintiff sustained after going to Tina Nails Salon to get a pedicure on November 7, 2016.  On December 21, 2018, Plaintiff filed an Amendment to Complaint naming Tom Cong Tran as Doe 1, Daniel Tran as Doe 2, and Dinh Tran as Doe 3. 

On February 3, 2021, Plaintiff obtained Tom Cong Tran’s and Dinh Tran’s defaults, and on March 24, 2021, Plaintiff obtained Daniel Tran’s default.  Thereafter, on December 10, 2021, Plaintiff filed a Request for Dismissal as to all Doe defendants.

Plaintiff now moves to set aside the December 10, 2021 dismissal.  The motion is unopposed. 

CCP § 473(b) states in pertinent part, “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client…” 

            “To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.”  (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].) 

            In this case, the underlying dismissal was entered on December 10, 2021, and the instant motion was timely filed on March 1, 2022, which is within six months from the date of the dismissal.  Furthermore, Plaintiff’s counsel’s declaration establishes mistake, inadvertence, and excusable neglect in connection with the dismissal.  Plaintiff’s counsel provides the dismissal was inadvertently made as to all Doe defendants, as Plaintiff’s counsel did not intend to dismiss Does 1, 2, and 3, who were named as Tom Cong Tran, Daniel Tran, and Dinh Tran. 

The motion is therefore granted.  (CCP § 473(b).)  The action is reinstated.  The Court sets an Order to Show Cause re: Entry of Default for _______________________________. 

Plaintiff is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 22^nd day of August 2022