Judge Audra Mori, Case BC678640 2022-07-29 Tentative Ruling

Judge: Audra Mori, Case: BC678640, Date: 2022-07-29 Tentative Ruling

Case Number: BC678640 Hearing Date: July 29, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ZHEN ZHEN PERI,

Plaintiff(s),

vs.

ANDREW RYAN WONG, ET AL.,

Defendant(s).

)

CASE NO: BC678640

[TENTATIVE] ORDER CONTINUING MOTION TO SET ASIDE DISMISSAL

Dept. 31

1:30 p.m.

July 29, 2022

On October 6, 2017, Plaintiff Zhen Zhen Peri (“Plaintiff”) filed this action against Defendant Andrew Ryan Wong (“Defendant”) for damages arising from a motor vehicle accident.

A Trial Setting Conference (“TSC”) and Order to Show Cause re: Dismissal (“OSC”) were called for hearing on August 19, 2021. After there were no appearances by or for either party, the action was dismissed pursuant to CCP § 581(b)(3).

On February 17, 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. The motion is unopposed.

The proof of service attached to the motion states that the motion was served on “m,.” This appears to be an error. Plaintiff filed proof of service on April 21, 2022, showing Defendant was personally served with the summons and complaint prior to dismissal. However, there is no evidence that Defendant was given proper notice of this motion. (McDonald v. Severy (1936) 6 Cal.2d 629 [no authority to set aside dismissal where no notice given to dismissed party]; see Maxwell v. Cooltech, Inc. (1997) 57 Cal.App.4th 629, 631-32.) Setting aside the dismissal means bringing Defendant back into the action, and thus, directly affects Defendant’s rights.[1] Defendant must be given notice of this motion prior to the hearing. Thus, the motion will be continued to ensure Defendant receives notice of the motion.

The motion is continued to August 29, 2022 at 1:30 pm. Plaintiff must file proof of service of the motion prior to the hearing. The court notes this matter is nearing five years old, and thus, no further continuances of the motion will be permitted.

Plaintiff is ordered to give notice.

PLEASE TAKE NOTICE:

The court is not available to hear oral argument on this date. If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.
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 29^th day of July 2022

Hon. Audra Mori

Judge of the Superior Court

[1] It is the general rule that “ ‘... notice of motion must be given whenever the order sought may affect the rights of an adverse party. [Citations.] (McDonald v. Severy (1936) 6 Cal.2d 629, 631.)’ Restated, ‘...in an adversary proceeding where an order may affect the rights of an adverse party's right to be heard on the issue as a matter of due process of law.’ [Citations.]” (St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82, 85; see also Miller v. Foremost Motors, Inc. (1993) 16 Cal.App.4th 1275-76 [“Fundamental due process demands that [the defendant] have notice of a motion to vacate a dismissal…”].)