Judge Cherol J. Nellon, Case 19STCV28593 2023-04-11 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

            Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line.    If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.

            Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court.

        If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.

Plaintiff Leroy Lewis’s Motion to Vacate Entry of Dismissal

Having considered the moving papers, the Court rules as follows.

On August 15, 2019, Plaintiff Leroy Lewis (“Plaintiff”) field this action against Defendants Acapulco Hand Car Wash (“Car Wash”), Lamden Trust (“Trust”) William Lamden (“Lamden”) and Randolph Corby (“Corby”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendants Doris Liou (“Doris”), Allen Liou (“Allen”), Abraham Chunab (“Chunab”), Marcelina Piedra Reyes (“Marcelina”) and Jose Guadalupe Reyes (“Jose”).

On March 12, 2021, the clerk entered default against Car Wash. On June 11, 2021, the Court dismissed Trust, Lamden, Corby, Allen, and Doris, without prejudice. On October 13, 2021, the clerk entered default against Chunab, Jose and Marcelina.

On July 7, 2022, the Court dismissed the entire action, without prejudice.

On January 3, 2023, Plaintiff filed a Motion to Vacate Dismissal to be heard on April 11, 2023.

Plaintiff requests the Court vacate dismissal as it was entered due to Plaintiff’s counsel’s mistake.

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.) The discretionary provision grants relief based upon a party or legal representative’s mistake, inadvertence, surprise, or neglect. The discretionary provision states 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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The mandatory provision states in pertinent part:

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

“The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, emphasis added.)

CCP §473(b) does not apply setting aside mandatory dismissal entered pursuant to §583.250. (Bernasconi Commercial Real Estate v. St. Joseph's Regional Healthcare System (1997) 57 Cal.App.4th 1078.)

Plaintiff’s application was filed within 6 months of dismissal.

Plaintiff’s counsel submitted a declaration stating that counsel mis-calendared the July 7, 2022, OSC date. As the failure to appear was due to attorney’s mistake, Plaintiff has complied with all requirements for relief. The Court grants the motion.

Plaintiff Leroy Lewis’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is vacated.

The Court sets an Order to Show Cause Re: Failure to Resubmit Default Judgment Packet for May 11, 2023, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.