Judge: Cherol J. Nellon, Case: 21STCV37268, Date: 2023-05-23 Tentative Ruling

Case Number: 21STCV37268    Hearing Date: May 23, 2023    Dept: 28

Plaintiff Kris Anne Louis’s Motion to Vacate Entry of Dismissal

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

BACKGROUND

On October 8, 2021, Plaintiff Kris Anne Louis (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”), County of Los Angeles (“County”), California Department of Transporation (“CDT”), Lyft, Inc. (“Lyft”), Segway, Inc. (“Segway”) and United Grand Corporation (“UGC”) for premises liability, strict products liability and negligence.

On July 21, 2022, Segway filed an answer. On July 22, 2022, the State filed an answer. On August 9, 2022, the Court dismissed CDT, without prejudice, pursuant to Plaintiff’s request. On August 8, 2022, the City filed an answer.

On November 3, 2022, the Court dismissed the complaint, without prejudice, pursuant to Plaintiff’s request.

On February 7, 2023, Plaintiff filed a Motion to Vacate Dismissal to be heard on April 26, 2023. The Court continued the hearing on the motion to May 23, 2023. On May 10, 2023, the City and Lyft (“Opposing Defendants”) filed an opposition.

There is no currently set trial date.

PARTY’S REQUESTS

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

Opposing Defendants request the Court deny the motion, or, in the alternative, award fees and costs in opposing Plaintiff’s motion.

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 application was filed within 6 months of dismissal of the complaint; the Court does note that the moving papers provide the wrong date for dismissal. The moving papers state that the complaint was dismissed November 27, 2022—according to the Court’s record, dismissal was entered on November 3, 2022. Regardless, the application was made within 6 months of dismissal.

Plaintiff’s counsel submitted a declaration stating that counsel inadvertently dismissed the entire complaint, instead of only the County. As the dismissal was due to attorney’s mistake, Plaintiff has complied with all requirements for relief.

Opposing Defendants argue that voluntary dismissal cannot be used as a basis for mandatory relief under CCP § 473. However, the Court finds that the cases cited are not on point as to this case. For example, in Huens v. Tatum (1997) 52 Cal. App. 4th 259, 265, the Court specifically held that the mandatory relief section cannot be used to set aside a “voluntary dismissal executed pursuant to a settlement.” In Jackson v. Kaiser Found. Hosps., Inc. (2019) 32 Cal. App. 5th 166, 174, the Court noted that dismissals that are not subject to the mandatory provision include dismissals following the sustaining of a demurrer without leave to amend on the grounds that the statute of limitations had run, voluntary dismissal pursuant to a settlement agreement, or failure to prosecute. The court extended this to include the facts in Jackson, in which a party dismissed an already pending lawsuit, without prejudice, pursuant to her attorney’s advice. In both of these cases, the attorney intended to dismiss the complaint or the relevant parties. Only later did the attorney realize that their intent was misguided, either by reason of insurance or a misunderstanding of the law. This is distinct from the current case—according to Plaintiff’s counsel’s declaration, counsel never intended to dismiss parties other than the County. There was no mistake as to law, tactics, or facts—counsel simply accidentally filled out the wrong box on a form. It also differs from cases where the case was dismissed due to a failure to prosecute, as Plaintiff was actively involved in this action prior to dismissal. This more clearly fits within the constraints of a client losing their day in Court due to an attorney’s mistake, rather than an attorney making a poor tactical decision or failure to act. The Court finds that the mandatory relief section applies, and that Plaintiff has complied with all requirements.

Under CCP § 473(b), when relief is granted based on an attorney’s affidavit of fault, the court shall grant opposing parties reasonable fees and costs associated with the opposition.

Opposing Defendants request $11,982.45 in costs and fees. This is based on .6 hours of attorney’s work, at a rate of $727.50 per hour, 6.9 hours of attorney’s fees, at a rate of $652.50 per hour, and 15.9 hours of attorney’s fees, at a rate of $443.00 per hour. All time was spent researching and drafting the opposition. The Court awards $1,500.00 in sanctions, based on 6 hours of attorney’s work at a reasonable rate of $250.00 per hour.

CONCLUSION

Plaintiff Kris Anne Louis’s Motion to Vacate Entry of Dismissal is GRANTED. Dismissal is granted.

Plaintiff’s time to file the amended complaint is based on the time that would have been remaining at the time of dismissal.

Defendants City of Los Angeles and Lyft, Inc.’s Request for Sanctions is GRANTED. Plaintiff and Plaintiff’s counsel are ordered to pay Opposing Defendants $1,500.00 in sanctions, within 30 days of the hearing on the motion.

The Court sets a Trial Setting Conference for June 9, 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.