Judge: Audra Mori, Case: 20STCV49463, Date: 2023-02-17 Tentative Ruling

Case Number: 20STCV49463    Hearing Date: February 17, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Khatib Khaled (“Plaintiff”) filed this action against Defendant Mounir Ghali and Mona Ghali (collectively, “Defendants”) for injuries Plaintiff sustained while walking on Defendants’ property.  Plaintiff alleges that he fell violently into a hole in the property. 

On June 28, 2022, a non-jury trial was scheduled in this matter.  There were no appearances at the trial, so Plaintiff’s complaint was ordered dismissed without prejudice.  On August 23, 2022, Plaintiff filed the instant motion to set aside the dismissal.  Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect.   The motion is unopposed.

2. Motion to Set Aside Dismissal

CCP §473(b) provides, in pertinent part:

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. …

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a defendant failed to make a timely response.  Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own.  Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default.  (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 provides that Plaintiff’s counsel was severely ill when he received notice of the trial and did not inform his law firm of the order.  Plaintiff’s counsel further failed to properly calendar the hearing, so no one appeared at the trial.  Counsel’s declaration establishes mistake, inadvertence, or excusable neglect in connection with failing to appear at the trial on June 28, 2022. 

            Based on the foregoing, Plaintiff’s motion to set aside the dismissal is granted.  The Court sets an Order to Show Cause Re: Dismissal for Failure to file proof of service for _______________ in this Department.  Plaintiff must diligently prosecute this matter, as it is approaching three years in age.

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 17^th day of February 2023