Judge: Audra Mori, Case: 20STCV30980, Date: 2022-10-28 Tentative Ruling

Case Number: 20STCV30980    Hearing Date: October 28, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Alfredo Carranza, Christina Munoz, Melvin Cordova, and Melvin Mejia (collectively, “Plaintiffs”) filed this action against defendants David Donna, Mark Tregubov, David A Dona, Debra McCracken, and Michael McCracken (“Defendants”) for damages arising from a motor vehicle accident. 

A Final Status Conference (“FSC”) and trial were set in this matter for February 14, 2022.  However, there was no appearance or contact by either party, so Plaintiff’s complaint was ordered dismissed without prejudice.  After the matter was dismissed, Plaintiff filed proof of service of the summons and complaint on Michael McCracken, Mark Tregubov, and David A Dona. 

On August 12, 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 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, Plaintiff’s counsel, Fred Hanassab (“Counsel”), provides that the Covid-19 pandemic has caused Counsel’s office to be severely short-staffed, and that Counsel has been out of the office for great periods of time because of family medical emergencies.  Further, Counsel provides he contracted Covid-19 in late 2021, which further caused him to be absent from his office, and that his current legal secretary in charge of calendaring and case management has been absent from work due to severe pregnancy symptoms.  Counsel avers these factors resulted in Counsel failing to timely file proof of service on the defendants in this matter and appear at the FSC and trial on February 14, 2022.  (Hanassab Decl. ¶¶ 8-9.)  Counsel’s declaration establishes mistake, inadvertence, and excusable neglect in connection with failing to appear at the trial on February 14, 2022. 

The motion is therefore granted.  (CCP § 473(b).)  The action is reinstated.  The Court sets an Order to Show Cause Re: Dismissal for failure to file proof of service as to the remaining defendants Plaintiff has not served and Order to Show Cause Re: Entry of Default for ________________.  Plaintiff is ordered to serve notice of this order on defendants Michael McCracken, Mark Tregubov, and David A Dona in the same manner as the summons within 30 days. 

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 28^th day of October 2022