Judge: Cherol J. Nellon, Case: 21STCV12349, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV12349    Hearing Date: March 20, 2023    Dept: 28

Plaintiff Shermaine Newman’s Motion to Vacate Entry of Dismissal; Plaintiff Shermaine Newman’s Motion to Vacate Entry of Default Judgment

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

BACKGROUND

On April 1, 2021, Plaintiff Shermaine Newman (“Plaintiff”) filed this action against Defendants Rickey Kerry Brown (“Brown”), Shakela Davis (“Davis”), Brandon Jackson (“Jackson”), Liliana Aguilar (“Liliana”), Juan Aguilar (“Juan”), Zander Aguilar (“Zander”), Christopher Moore (“Moore”), Louisiana Famous Fried Chicken (“LFFC”) for motor vehicle negligence, general negligence and premises liability.

The clerk entered default against LFCC on September 14, 2021. The Court entered judgment against LFCC on May 10, 2022.

The Court dismissed, without prejudice, all Defendants, other than LFFC on April 20, 2022, pursuant to Plaintiff’s request. Does were dismissed, without prejudice on May 5, 2022.

On October 14, 2022, Plaintiff filed a Motion to Vacate Default Judgment to be heard January 13, 2023.

On October 14, 2022, Plaintiff filed a Motion to Vacate Dismissal to be heard on January 13, 2023.

The Court continued the hearing on both motions to March 20, 2023.

PARTY’S REQUESTS

Plaintiff requests the Court vacate dismissal and default as Plaintiff learned the identity of DOE 1.

LEGAL STANDARD

“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.)

DISCUSSION

Plaintiff’s applications were filed within 6 months of dismissal and entering of default judgment.

Plaintiff alleges that they served the wrong Louisiana Famous Fried Chicken originally and obtained judgment against the same incorrect party. The two parties have identical names and LFCC never appeared to identify that this was a mistake. The Court finds that default and dismissal were both entered due to attorney’s mistake, inadvertence, surprise or neglect, and grants the motion.

CONCLUSION

Plaintiff Shermaine Newman’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal against Doe Defendants 1-25 is vacated.

Plaintiff Shermaine Newman’s Motion to Vacate Entry of Default Judgment is GRANTED. Default Judgment against LFCC is vacated.

The Court sets a hearing on an Order to Show Cause Re: Proof of Service and Amendment of Doe Defendant for April 17, 2023, at 8:30 a.m., in Department 28 of the Spring Street Courthouse. 

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.