Judge: Audra Mori, Case: BC678640, Date: 2022-08-29 Tentative Ruling

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

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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.

This matter was last heard on July 29, 2022, where it was continued to August 29, 2022, after the Court noted the proof of service attached to the motion was defective on its face.  Plaintiff was ordered to file proof of service prior to the continued hearing.  (Min. Order, July 29, 2022.)  On August 4, 2022, Plaintiff filed proof of service of the moving papers on Defendant.  However, Plaintiff’s counsel failed to execute the proof of service under penalty of perjury.  Therefore, despite the continuance, Plaintiff again filed a defective proof of service.  (See CCP § 2015.5.) 

In addition, although Plaintiff was ordered to give notice of the continued hearing date, to date, Plaintiff has not filed any notice and proof of service of such with the Court.  The defective proof of service filed on August 4, 2022, states only that the moving papers, which contain the previous hearing date, were served on Defendant, but there is no mention of a notice of the continuance being served on Defendant. 

In order for the court to go forward with a hearing, a valid and signed proof of service not only of the motion papers but also of the most current hearing date must be provided.  Due process requires that notice be given of the operative hearing date, not a passed hearing date.  Without such notice, there is no opportunity for Defendant to oppose appear at the hearing.

Therefore, the hearing on the motion to set aside is continued to _______________ at 1:30 p.m. for Plaintiff’s counsel to file proof of service of the moving papers and continued hearing date on Defendant.  Further, at that date and time, the Court sets an Order to Show Cause Re: Why Plaintiff’s Counsel should not be sanctioned up to $500 for failing to file a proper proof of service despite the previous continuance.

Based on the foregoing, Plaintiff’s motion 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 29^th day of August 2022