Judge: Audra Mori, Case: 19STCV12642, Date: 2022-12-12 Tentative Ruling

Case Number: 19STCV12642    Hearing Date: December 12, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

April 11, 2019, Plaintiffs Jairaj Mahendra Sanghavi, Gita Jairaj Sanghavi, and Monisha Jairaj Sanghavi (collectively, “Plaintiffs”) filed this action against Defendant Jazmin Ayala (“Defendant”) for damages arising from a motor vehicle accident.  Defendant filed her answer to the complaint on May 20, 2019. 

On April 7, 2022, the parties appeared for an Order to Show Cause (“OSC”) Re: Dismissal where Plaintiffs’ counsel represented that the parties were engaged in settlement discussions and requested a continuance.  The OSC was continued to July 11, 2022.  At the OSC on July 11, 2022, there were no appearances or contact by either party.  The Court ordered Plaintiffs’ complaint dismissed without prejudice.  (Min. Order, July 11, 2022.)

On November 14, 2022, Plaintiffs filed the instant motion to set aside dismissal.  Plaintiffs assert the dismissal was the result of Plaintiffs’ counsel’s mistake, inadvertence, or excusable neglect.  Plaintiffs filed proof of service of the motion on Defendant.  The motion is unopposed.   

2. Motion to Set Aside Dismissal

a. Mandatory Relief

To the extent the motion is made pursuant to the mandatory provision of §473(b), Plaintiffs cannot obtain relief under the mandatory provisions of Cal. Code Civ. Proc. §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. 

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, Plaintiffs’ counsel, Shaun Bauman (“Counsel”), provides that on July 11, 2022, he was attempting to attend the OSC virtually, but Counsel was unable to log in after clicking on the provided link.  Counsel states that he received a notification stating he could not join because that the clock on his computer was inaccurate, and when Counsel tried to call in using the conference phone number, Counsel was not connected.  Counsel, thus, attests that there was no appearance for or by Plaintiffs at the OSC because Counsel neglected the issues with Counsel’s computer prior to the hearing.  Counsel’s declaration establishes mistake, inadvertence, or excusable neglect in connection with failing to appear at the OSC on July 11, 2022.  (Mot. Bauman Decl. ¶¶ 4-5.)    

Plaintiffs’ motion to set aside dismissal, therefore, is granted.  The action is reinstated.  The court sets an OSC re: Dismissal, and in the alternative if a settlement is not completed, a trial setting conference for _______________________________. 

Plaintiffs are 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 12^th day of December 2022