Judge Bruce G. Iwasaki, Case 20STCV29187 2023-02-10 Tentative Ruling

Tentative Ruling: The Motion to Vacate Dismissal is denied.

The initial complaint was filed on August 3, 2020, without any specified causes of action. On December 18, 2020, this Court then set an Order to Show Cause for failure to file proof of service (OSC). There were no appearances at that hearing. Subsequently, the Court continued this matter two more times – to February 26, 2021 and June 2, 2021. Plaintiff Mr. BW appeared in both hearings and requested more time to serve the defendants.

On September 20, 2021, at the third continuance on the OSC, Plaintiff filed a First Amended Complaint naming at least 20 defendants and alleging 45 causes of action including forcible detainer, wrongful eviction, invasion of privacy, and numerous statutory and constitutional violations. By this time, Plaintiff still had not filed any proofs of service. The Court then set a Case Management Conference for February 1, 2022.

On January 31, 2022, Plaintiff filed an “Emergency Notice for Continuance Request due to Unforeseen Medical Issues.” He did not attend the February 1 hearing and the Court once again continued the hearing to August 4, 2022.

At the August 4, 2022 hearing, this Court dismissed the entire case pursuant to Code of Civil Procedure section 583.410, subdivision (a) and California Rules of Court, rule 3.110 for Plaintiff’s failure to serve any of the defendants.

On January 19, 2023, Plaintiff moves to vacate the dismissal based on various medical ailments he suffered during the last few years. There was no opposition filed.

The Court denies the motion because Plaintiff has failed to make a sufficient showing as to why the dismissal should be vacated.

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.” ’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Plaintiff may only seek discretionary relief because he is not represented by counsel.

Mr. BW’s declaration contains a detailed history of his medical ailments. He indicates that on August 18, 2021, he suffered a head injury leading to a concussion. (BW Decl., p. 11.) That injury caused him to attend numerous doctors’ visits between September 2021 and February 2022. In March 2022, he avers that he suffered a mini-stroke and sometime before May, he suffered an ischemic stroke. (Ibid.) On August 4, 2022, the day of the last hearing, Plaintiff states that he visited a doctor and provides the medical report. (Ibid., Ex. G.) Since that time, his mother passed away in August 2022 and he was reportedly assaulted in December 2022. (Id. at p. 12.)

While the Court is sympathetic to Plaintiff’s circumstances, he has not shown how any of those issues interfered with his ability to attempt service on the defendants between August 2020 and August 2022. Plaintiff appeared at the February 26, June 2, and September 20, 2021, hearings where he requested, and was provided, more time to serve the defendants named in this case. The Court recognizes that Plaintiff attended a medical visit on August 4, 2022, the day this case was dismissed, but the problems in this case date back to 2020.

With respect to Plaintiff’s claimed health issues, the showing presented here is insufficient for relief under Code of Civil Procedure section 473. The memorandum of points and authorities consists largely of statutory text and a verbatim copy of the Health Insurance Portability and Accountability Act. The declaration similarly provides no details on the severity or length of Plaintiff’s condition. In many of the attached medical reports, the doctors’ notes merely indicate the visit was for fatigue or itchy skin (BW Decl., Ex. B), generalized follow-up visits after the concussion (Exs. C, E), or for sleep difficulties (Ex. D). (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 909 [plaintiff “does not state the severity of the condition or in what manner it limited her activity, nor did she present a doctor’s declaration to confirm her statements”].)

Assuming however, that Plaintiff’s condition was significant, service of process may be conducted by someone who is “not a party to the action.” (Code Civ. Proc., § 414.10.) It is unclear how Plaintiff’s medical difficulties precluded him from arranging for service on the defendants. He does not provide any details on any attempts or even efforts engaged in thus far to effect service, such as hiring a process server or conducting due diligence on defendants’ locations.

Finally, on January 25, 2023, the Los Angeles Superior Court declared Mr. BW – a pseudonym for Brian Williams – a vexatious litigant and issued a prefiling order. Whether this motion to set aside a dismissed should be viewed as “new litigation,” is unclear, but the designation invites skepticism regarding Plaintiff’s assertions. It seems that he has not been impaired in pursuing other litigation.

[1] Plaintiff is suing individually and on behalf of the “general public and . . . all other persons and class similarly situated, that is, a class of claimants whose rights were violated as were BW’s.”

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