Judge Audra Mori, Case BC722259 2023-01-25 Tentative Ruling

This case arises out of an auto accident that allegedly occurred in September of 2016. On September 21, 2018, Plaintiffs Jessica Lomeli and Vanessa Lomeli (collectively, “Plaintiffs”) filed this action against Defendant Barry Hoaire (“Defendant”) for damages arising from a motor vehicle accident. The complaint was served on Defendant 20 months later in May of 2020. Defendants filed an answer on June 26, 2020.

Pursuant to a stipulation by the parties signed and filed April 20, 2022, the Final Status Conference (“FSC”) in this matter was set for July 29, 2022, and trial was set for August 12, 2022. On July 29, 2022, the FSC was continued to August 5, 2022, pursuant to Defendant’s request. At the FSC on August 5, 2022, there was no appearance by or for Plaintiffs, and the FSC was continued to the trial date of August 12, 2022. Plaintiffs were put on notice that if there were no appearances on the date of trial, the Court could dismiss the case. (Min. Order, Aug. 5, 2022.) Defendant filed notice of the ruling showing electronic service on Plaintiffs on August 9, 2022. On August 12, 2022, there was no appearance or contact by Plaintiffs at the FSC and trial, and so, the Court ordered the complaint dismissed.

On November 21, 2022, Plaintiffs filed the instant motion to set aside the dismissal based on their attorney’s excusable neglect. Defendant opposes the motion. To date, no reply has been filed.

CCP §473(b) provides, in pertinent part: “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 made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…”

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a defendant failed to make a timely response. Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default. (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, Plaintiffs assert that their counsel has been diligent in his prosecution of this case and that the parties were in the process of scheduling mediation. Plaintiffs provide that their counsel did not appear for the August 12, 2022, trial because the trial date was not correctly entered on counsel’s calendar. Plaintiffs’ counsel states that he does not know exactly how the FSC and trial dates escaped entry on his firm’s calendar but believes the error was made by a “disgruntled” employee that is no longer with counsel’s firm, and that because of turnover in staff, certain dates were mis-calendared. (Mot. Panah. Decl. at p. 7:11.) Further, Plaintiffs’ counsel states that conversations transpired between Plaintiffs and Defendants about a trial continuance since the parties were still completing discovery, and Plaintiffs contend that this matter is now ready to proceed without prejudice to either party.

Defendant, in opposition, contends Plaintiffs’ counsel failed to appear for the trial and FSCs despite Defendant serving notice of each. Defendant asserts that Plaintiffs’ counsel’s failures to appear are not isolated events and that Plaintiffs have not otherwise been diligent in pursuing this claim or completing discovery. Defendant contends that Plaintiffs’ counsel misrepresents the status of the case, as the parties have had no mediation discussions and they are not ready to proceed to trial. In addition, Defendant argues that Plaintiffs’ counsel has filed numerous nearly identical motions in other matters over the years, such that Plaintiffs’ counsel’s conduct is not excusable.

Plaintiffs have not filed a reply to Defendant’s opposition, and thus, Plaintiffs provide no argument or facts to dispute Defendants’ contentions. In particular, while Plaintiffs’ counsel believes certain dates were not calendared because of an alleged disgruntled employee, Plaintiffs’ counsel provides no details about when any such disgruntled or other staff left his employ. Plaintiffs’ counsel otherwise merely states, “I do not know exactly how the FSC and Trial date escaped the correct date entry on our calendars …” (Mot. Panah. Decl. at p. 7:8-10.) Consequently, Plaintiffs’ counsel does not show that the failure to appear for the trial date, despite notice of such being repeatedly served on Plaintiffs’ counsel, resulted from mistake, inadvertence, surprise, or excusable neglect. Indeed, the August 5, 2022 order expressly put Plaintiffs on notice that failure to appear at the trial could result in dismissal, even though it did not need to do so, as the parties had notice of the trial date for months. Moreover, although Plaintiffs assert that there is no prejudice, Defendant avers that the matter is not ready to proceed to trial because Plaintiffs have unreasonably delayed in providing discovery to Defendant,[1] which has delayed Defendant’s ability to prepare a defense concerning an accident that occurred over six years ago.

Based on the foregoing, Plaintiffs’ Motion to Set Aside the Default is denied.

Hon. Audra Mori

Judge of the Superior Court

[1] For example, while Plaintiff contends the parties were discussing medical examination dates for Plaintiffs, Defendant contends that Plaintiffs repeatedly objected to the proposed dates, causing Defendant to reserve a date for a motion to compel before the case was dismissed.