Judge: Audra Mori, Case: 19STCV00910, Date: 2022-10-05 Tentative Ruling

Case Number: 19STCV00910    Hearing Date: October 5, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Tamara Waldman (“Plaintiff”) filed this action against Defendant Tae Sung Kang (“Defendant”) alleging Defendant negligently operated platform cart and struck Plaintiff while Plaintiff was shopping at a Costco Wholesale. 

An Order to Show Cause Re: Dismissal, Order to Show Cause Re: Dismissal for Failure to file Proof of Service, and Trial Setting Conference were set for December 22, 2021.  There were no appearances or contact by or for either party, so the Court ordered Plaintiff’s complaint dismissed without prejudice.  (Min. Order, Dec. 22, 2021.) 

On May 24, 2022, Plaintiff filed the instant motion to set aside dismissal.  Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. 

2. Motion to Set Aside Dismissal

a. Mandatory Relief

To the extent the motion is made pursuant to the mandatory provision of §473(b), Plaintiff cannot obtain relief under the mandatory provisions of CCP §473(b) where an action is dismissed for failure to prosecute. 

“Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion[,] ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable 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].” Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620.

“An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.  After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.”  (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658.)

b. Discretionary Relief

The court does, however, have discretion to vacate the dismissal under the discretionary provisions of CCP § 473(b).  To grant relief under the discretionary relief provision of § 473, the moving party must show the dismissal was entered as a result of mistake, surprise, inadvertence, or excusable neglect. 

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(CCP § 473(b).)

A mistake is a basis for relief under CCP § 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 or dismissal.  (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 CCP § 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.) 

Here, Plaintiff timely filed the motion within six months of the dismissal on December 22, 2021.  Plaintiff’s counsel, Alexander E. Gilburg (“Counsel”), provides that before filing the complaint, Plaintiff was engaged in settlement negotiations with Defendant’s insurance carrier, and planned to continue negotiations with Defendant’s carrier.  Counsel states that after a hearing on October 20, 2021, Counsel failed to calendar the December 22, 2021 hearing, and Counsel failed to calendar deadlines to get the summons and complaint served on Defendant.  Plaintiff’s counsel attests that Plaintiff intends to prosecute this case, has confirmed an address at which to serve Defendant, and anticipates serving Defendant as soon as the dismissal is set aside.  Counsel’s declaration establishes mistake, inadvertence, or excusable neglect in connection with failing to appear at December 22, 2021 hearing.   

Plaintiff’s motion to set aside dismissal, therefore, is granted.  The action is reinstated.  The Court sets an OSC re: Dismissal for Failure to file Proof of Service for approximately 30 days from now on November 7, 2022.  Plaintiff must act diligently from this point forward given the age of the case.    

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 5^th day of October 2022