Judge: Audra Mori, Case: 20STCV15717, Date: 2022-08-16 Tentative Ruling

Case Number: 20STCV15717    Hearing Date: August 16, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Della Kalteis (“Plaintiff”) filed this action against Defendants American Realty Advisors and Accent Apartments for damages relating to Plaintiff’s alleged slip and fall on Defendants’ property.  

A Final Status Conference was set in this matter for October 8, 2021, where Plaintiff represented Plaintiff was having difficulty serving Defendants.  The Final Status Conference was placed off calendar and an Order to Show Cause re: Dismissal for Failure to File Proof of Service (the “OSC”) was set for December 17, 2021.  At the OSC there were no appearances or contact by either party, and Plaintiff’s complaint was dismissed without prejudice.  (Min. Order, Dec. 17, 2021.) 

On March 16, 2022, Plaintiff filed the instant motion to set aside dismissal.  Plaintiff contends the dismissal was due to Plaintiff’s counsel mistake, inadvertence and excusable neglect. 

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 17, 2021, and the instant motion was filed on March 16, 2022, which is within six months from the date of the dismissal.  Consequently, the motion is timely.  Moreover, Plaintiff’s counsel, D. Hess Panah, submits a declaration stating that the OSC was not properly entered into counsel’s calendars because the attorney that appeared at the Final Status Conference on October 8, 2021, did not calendar the date of the OSC.  The court finds Counsel’s declaration establishes mistake, inadvertence and neglect in connection with failing to appear at the OSC.

The motion is therefore granted.  (CCP § 473(b).)  The action is reinstated.  The court notes Plaintiff filed proof of service of the summons and complaint on Defendants American Realty Advisors and Accent Apartments on April 13, 2022, after this motion was filed.  The proof of service indicates that service took place after the action was dismissed.  Plaintiff is ordered to serve notice of this order, together with the summons and complaint, on Defendants in the same manner as the summons must be served within 30 days.  Plaintiff must also file proof of such service within 35 days.  An OSC re: Service of summons and complaint is set for 8:30 a.m. on October ___, 2022. Defendants are ordered to file their responsive pleading within 30 days of being served with notice of this order.

The court sets a Trial Setting Conference 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 16^th day of August 2022