Judge: Christian R. Gullon, Case: 22PSCV01773, Date: 2023-08-09 Tentative Ruling

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Case Number: 22PSCV01773    Hearing Date: February 1, 2024    Dept: O

Tentative Ruling

Plaintiff’s MOTION TO SET ASIDE DISMISSAL BASED ON ATTORNEY'S EXCUSABLE NEGLECT (C.C.P. §473) is GRANTED.

Background

This case arises from a motor vehicle accident.

On November 10, 2022, Plaintiff filed suit against Defendants LORI CHEIKOSMAN; EAN HOLDINGS LLC (Ean Holdings); ROSA MARIE CAFFELLI; GEORGE CASTRO; JEFFREY DAVID DEHARO; OSCAR OCTAVIANO; IRMA LAFORTUNE; ROBERT WEBSTER CURTIS III; PHILLIP ANDREW NGOC NGUYEN alleging that all defendants were negligent causing Plaintiff’s injuries.

On May 12, 2023, Phillip Nguyen filed is answer.

On May 22, 2023, Rosa Caffelli and George Castro filed their answers along with a cross-complaint against the other named Defendants for indemnity and contribution.

On June 21, 2023, Defendants/Cross-Defendants Caffelli and Castro filed a ‘request for dismissal’ of Ean Holdings, LLC.

On June 21, 2023, Ean Holdings filed a demurrer to Plaintiff’s complaint, which the court sustained with leave to amend on 8/18/23, requiring an amended complaint to be filed by 9/18/23.

On August 4, 2023, Lori filed a cross-complaint Defendants.

On September 26, 2023, the court issued the following minute order:

“The Court states it has read and considered the Defendant Ean Holdings, LLC's Ex Parte Application to Dismiss Plaintiff's Complaint for Failure to Amend After Demurrer Sustained with Leave to Amend; Memorandum of Points and Authorities; Declarations of Scott D. Miller and Nicole Peterson filed by Defense Counsel on September 25, 2023. Defendant Ean Holdings, LLC's Ex Parte Application to Dismiss Plaintiff's Complaint for Failure to Amend After Demurrer Sustained with Leave to Amend is heard and GRANTED. The Court orders LORI CHEIKOSMAN, EAN HOLDINGS LLC, ROSA MARIE CAFFELLI, GEORGE CASTRO, JEFFREY DAVID DEHARO, OSCAR OCTAVIANO, IRMA LAFORTUNE, ROBERT WEBSTER CURTIS, III and PHILLIP ANDREW NGOC NGUYEN in Complaint filed by JOSE CARBAJAL on 11/10/2022 dismissed with prejudice.” That same day, the court dismissed “LORI CHEIKOSMAN, et al.”

On October 13, 2023, Caffelli and Castro dismissed the cross-complaint against Lori.

On October 17, 2023, Lori dismissed the cross-complaint.

On December 27, 2023, Plaintiff filed the instant motion.

Legal Standard

According to CCP section 473, subdivision (d): “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Discussion

Plaintiff moves the court for an order seeking relief from an Order of Dismissal based on the excusable neglect of their attorney or in the alternative, for an order Nunc Pro Tunc amending the court’s minute order of September 26, 2023. (Motion pp. 1-2.)

After the court sustained Ean Holding’s demurrer, Plaintiff did not amend in time and Ean Holdings Inc. pursued a motion to dismiss Ean Holdings via Ex Parte. Although this motion was pursued by Ean Holdings Inc only, the Court inadvertently dismissed the entire action. Effectively, Plaintiff seeks an order nun pro tunc, to reflect that only Ean Holdings Inc. is dismissed from this action.

Here, as the court’s intent was to dismiss the case against Ean Holding Inc. only and not the entire complaint, the judgment may be antedated Nunc Pro Tunc to correct a clerical error.

Notwithstanding the foregoing, it appears makes references to the court improperly granting Ean Holding’s ex-parte motion. (See e.g., Motion p. 6:19-22 [“The improper Ex Parte pursued by Ean Holdings should not have been granted, primarily because the Court cannot entertain a motion to dismiss based on an Ex Parte.”]; see also pp.3-4 [“To make matters worse, Defendant pursued this with an Ex Parte and did not give proper notice to Plaintiff. The Ex Parte was inadvertently not calendared and Plaintiff did not have an opportunity to appear or oppose this application.”].) To the extent that Plaintiff seeks the court to vacate the dismiss of Ean Holding all together, that is unclear, and will be clarified during the hearing.

Conclusion[1]

Based on the foregoing, the court grants Plaintiff's Motion to Set Aside the Dismissal and restore this case against all Defendants other than Ean Holdings in this matter. (Motion p. 8:4-5, ‘Conclusion’ [“IT IS THEREFORE RESPECTFULLY REQUESTED THAT this Court grant Plaintiff's Motion to Set Aside the Dismissal and restore this case against all other Defendant’s in this matter.”].)