Judge: Audra Mori, Case: 19STCV18989, Date: 2023-04-26 Tentative Ruling

Case Number: 19STCV18989    Hearing Date: April 26, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 31, 2019, Plaintiff, Robert Clark (“Plaintiff”), filed this action against Defendant, El Monte SS Properties, LLC (“El Monte”) alleging causes of action for negligence and premises liability.  On October 17, 2019, Plaintiff filed an Amendment to Complaint naming Temple CB, LLC (“Temple CB”) as Doe 1.  On December 26, 2019, Plaintiff filed a Request for Dismissal as to El Monte only.  Thereafter, on May 4, 2022, Plaintiff filed a Request for Dismissal dismissing Does 1 to 50, which included Temple CB sued as Doe 1. 

On February 24, 2023, Plaintiff filed the instant motion to set aside the dismissal as to Temple CB, sued herein as Doe 1.  Plaintiff asserts that the dismissal as to Doe 1 was due to Plaintiff’s counsel’s inadvertence and mistake.  Plaintiff contends that there will be no prejudice to Temple CB if the motion is granted.

            CCP § 473(b) states:

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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … 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…

(Emphasis added.) 

“An [a]pplication for discretionary relief must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (§ 473, subd. (b).) An application for mandatory relief must be made within six months after entry of judgment. (Ibid.) … The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340.) 

            In this case, the dismissal as to Temple CB, sued as Doe 1, was entered on May 4, 2022.  Six months after this date was November 4, 2022.  Consequently, to obtain relief under the discretionary or mandatory provisions of CCP § 473(b), Plaintiff was required to file this motion by that date.  However, Plaintiff did not file the motion until February 24, 2023, over nine months after the dismissal.  Notably, Plaintiff was informed that Temple CB was dismissed in an order denying Plaintiff’s request for default judgment against Temple CB issued on August 22, 2022.  (Min. Order, Aug. 22, 2022.)  But Plaintiff’s counsel does not offer any explanation as to why relief was not timely sought.  Accordingly, Plaintiff’s motion is untimely, and the Court has no authority to grant the requested relief under either the discretionary or mandatory provisions of CCP § 473(b).  Plaintiff does not otherwise provide any authority or argument showing the Court has the ability to set aside the dismissal under these circumstances.  

Based on the foregoing, Plaintiff’s motion to set aside the dismissal against Temple CB is denied. 

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 26^th day of April 2023