Judge: Audra Mori, Case: BC678640, Date: 2022-10-03 Tentative Ruling

Case Number: BC678640    Hearing Date: October 3, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

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. 

This matter was last heard on August 29, 2022, where it was continued after Plaintiff failed to file proper proof of service of the moving papers and hearing date on Defendant.  Thereafter, on September 2, 2022, Plaintiff filed proof of service of the motion and instant hearing on Defendant.  To date, no opposition has been filed. 

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, Steven G. Candelas (“Counsel”), provides that after this action was filed, Counsel began working for another law firm, but Counsel was still handling matters that originated prior to his work with the new law firm, including this matter.  (Mot. Candelas Decl. ¶ 5.)  Counsel states that after combining his original calendar with the calendar of the new firm, Counsel inadvertently failed to properly calendar the TSC date of August 19, 2021 and failed to appear.  Counsel avers that he has now resolved all internal calendaring issues to avoid this error in the future.  (Id. at ¶ 6.) 

Counsel’s declaration establishes mistake, inadvertence, and excusable neglect in connection with failing to appear at the TSC on August 19, 2021. 

Plaintiff’s motion to set aside dismissal, therefore, is granted.  The action is reinstated.  The Court sets an OSC re: Entry of Default for December 05, 2022 at 8:30 a.m. 

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 3^rd day of October 2022