Judge: Audra Mori, Case: 21STCV05563, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV05563    Hearing Date: February 2, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Orlando Cuarto (“Plaintiff”) filed this action against Defendant Pacific Palms Resort (“Defendant”) for injuries Plaintiff sustained for a slip and fall at Defendant’s golf course.  

Defendant propounded form interrogatories, set one, special interrogatories, set one, and request for production of documents, set one, on April 7, 2021.  On November 29 and December 3, 2021, the Court entered an order granting Defendant’s motion to compel responses to the outstanding discovery, ordering Plaintiff to serve responses to the discovery within 10 days.  On February 15, 2022, because Plaintiff had not served responses, and after noting that it appeared Plaintiff had abandoned the case, the Court granted Defendant’s motion for terminating sanctions against Plaintiff and ordered Plaintiff’s complaint dismissed. 

On January 4, 2023, Plaintiff filed the instant motion to set aside the dismissal.  Defendant opposes the motion.  Any reply was due on or before January 26, 2023.  As of January 30, 2023, no reply has been filed. 

Plaintiff asserts that the dismissal was caused by his counsel’s mistake, inadvertence, and excusable neglect because Plaintiff’s counsel’s paralegal, who Plaintiff’s counsel relies on for calendaring all written discovery and motion dates, fell behind on his discovery and calendaring responsibilities because of the paralegal’s health issues, including contracting Covid-19.  Plaintiff asserts that the paralegal failed to apprise anyone of the discovery issues in this case, and that Plaintiff’s counsel did not learn this action was dismissed until September 2022.  Plaintiff seeks relief pursuant to CCP § 473(b), and pursuant to “COVID-19 and the Governor Newsom’s executive order …”  (Mot. at p. 7:2-3.) 

In opposition, Defendant contends that Plaintiff’s motion is untimely under CCP § 473(b), and that Plaintiffs counsel's actions do not amount to excusable mistake, neglect, or inadvertence.  Further, Defendant argues that equitable tolling and the Covid Emergency Rules do not apply to a motion to set aside dismissal under CCP § 473(b).   

2. Motion to Set Aside Dismissal

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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and 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 … resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

(Emphasis added.) 

            Accordingly, “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, Defendant’s motion for terminating sanctions was granted on February 15, 2022, and the order dismissing Plaintiff’s complaint was entered that same date.  Six months after this date, which is the date by which Plaintiff was required to file this motion for relief under CCP § 473(b), was August 15, 2022.  However, Plaintiff did not file this motion until January 4, 2023, almost 11 months after Plaintiff’s complaint was dismissed.  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). 

Additionally, a motion under CCP § 473(b) for relief from a terminating discovery sanction is “in proper form” if (1) verified discovery responses are delivered to opposing counsel before the hearing on the application for relief and (2) the content of those responses substantially complies with applicable requirements.  (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 719-20.)  Plaintiff provided copies of his responses to Defendant's form interrogatories, set one, with the instant motion, (Mot. Exh. 2), but Plaintiff does not provide copies of any responses to Defendant's special interrogatories, set one, or request for production of documents, set one.  Terminating sanctions were imposed against Plaintiff for failing to respond to these discovery requests as well, and thus, Plaintiff’s motion is defective on this additional ground. 

Lastly, as to Plaintiff’s request for relief pursuant to the Governor’s executive orders relating to Covid-19, Plaintiff provides no authority or citation to any executive orders or emergency rules that extend the time for a party to seek relief under CCP § 473(b). 

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

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 2^nd day of February 2023