Judge Audra Mori, Case BC691775 2022-09-30 Tentative Ruling

Judge: Audra Mori, Case: BC691775, Date: 2022-09-30 Tentative Ruling

Case Number: BC691775 Hearing Date: September 30, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RIGOBERTO QUINTANA, ET AL.,

Plaintiff(s),

vs.

AUGUSTIN HERNANDEZ, ET AL.,

Defendant(s).

)

CASE NO: BC691775

[TENTATIVE] ORDER CONTINUING PLAINTIFF’S MOTION TO VACATE DISMISSAL

Dept. 31

1:30 p.m.

September 30, 2022

On January 26, 2018, Plaintiff Rigoberto Quintana (“Plaintiff”) filed this action against Defendant Augustin Hernandez (“Defendant”) for damages arising out of an automobile accident.

An Order to Show Cause Re: Dismissal for Failure to Enter Default (the “OSC”) was set in this matter for October 14, 2021. There was no appearance or contact by either party at the OSC, and so Plaintiff’s complaint was ordered dismissed without prejudice.

On April 11, 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.

Plaintiff has filed proof of service showing Defendant was served with the summons and complaint by substituted service prior to the dismissal. (Proof of Service filed May 10, 2021.) However, there is no proof of service attached to the instant motion or other evidence showing that Defendant was given proper notice of this hearing. (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 ________________ at 1:30 pm. Plaintiff must file proof of service of the motion, and proof of service of notice of the continued hearing date, 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:

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 30^th day of September 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…”].)