Judge: Christian R. Gullon, Case: 22PSCV01785, Date: 2023-08-14 Tentative Ruling

Case Number: 22PSCV01785    Hearing Date: April 17, 2024    Dept: O

Tentative Ruling

PLAINTIFF’S MOTION TO MOTION FOR ORDER VACATING DISMISSAL PURSUANT TO THE MANDATORY PROVISIONS OF C.C.P. §473(b) AND RESTORING MATTER TO THE CIVIL ACTIVE is DENIED WITH prejudice.

Background

This is a negligence case. Plaintiff Jose Estrada alleges the following against the City of Baldwin Park: Plaintiff was injured while riding his motorcycle because there was a large hole in the road.

On November 14, 2022, Plaintiff filed suit against the City for (1) Premises Liability and (2) General Negligence.

On December 29, 2022, the City filed a Demurrer, which the court sustained with 20 days leave to amend on 2/14/23 (as the complaint provided no bases of statutory liability as required by Government Code § 815).

On June 15, 2023, the City filed the instant two discovery motions (and two more with scheduled hearings for 8/15/23).

On July 7, 2023, the court in the related case of 22STCP03313 granted Plaintiff’s Petition for Relief from Late Claim Law (Gov. Code 946.6).

On August 14, 2023, the court dismissed Plaintiff’s action for the failure to prosecute.

On February 14, 2024, Plaintiff filed the instant motion.

On March 13, 2024, Plaintiff filed a ‘Reply In Support Of Motion Vacating Dismissal Pursuant To The Mandatory Provisions Of C.C.P. §473(B) And Restoring Matter.’

On March 18, 2024, the court, after noticing that the instant motion was not served upon Defendant, continued the hearing to 4/19/24 to ensure adequate notice of the hearing to Defendant. For this reason, Plaintiff’s argument in sur-reply that any opposition is untimely is completely without merit.

On March 28, 2024, Plaintiff filed a substitution of attorney noting that Kevin Anderson has been hired as counsel.

On April 4, 2024, Defendant filed its opposition.

On April 10, 2024, Plaintiff filed a ‘Supplemental Reply In Support Of Motion Vacating Dismissal Pursuant To The Mandatory Provisions Of C.C.P. §473(B) And Restoring Matter.’

On April 11, 2024, Defendant filed ‘Sur Reply To Motion Vacating Dismissal.’

Legal Standard

Plaintiff brings forth the motion pursuant to CCP Section 473(b).

Under CCP 473(b), a judgment may be set aside due to mistake, inadvertence, surprise, and excusable neglect. The terms are defined as follows:  

Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation] 

(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) 

Discussion

Plaintiff moves to set aside the dismissal of his case on the grounds that his mismanagement of his case falls under “excusable neglect.” Not so.

According to Plaintiff, the facts here constitute as “excusable neglect” because he mis-calendared certain dates and misread minute orders. (Motion p. 3 of 36 of PDF.) Additionally, Plaintiff argues that “[a] similarly situated person, would not know that an amendment to a Complaint was required to reallege a surviving cause of action, within 30 days, if 90 days later a case management conference was held and the City engaged in discovery, if in fact all causes of actions were subject the demurrer.” (Motion p. 3.)

Here, however, none of the advanced reasons arise to the level of excusable neglect. Actually, Plaintiff’s conduct throughout the course of litigation has been intentional.

As noted by Defendant in opposition, if Plaintiff was unsure of the requirements to file an Amended Complaint, he had ample opportunity to 1) consult an attorney; 2) reach out to self-help; or 3) reach out to Defendant’s counsel in order to determine what was required of him. (Opp. p. 6.) That is what a reasonably prudent person, one who treats their case as important, would have done. Plaintiff, however, chose not to. To the extent that Plaintiff in sur-reply argues that “there is no current requirement that a Plaintiff must file an amended complaint after a demurrer is sustained to fewer than all causes of action” (Sur-Reply p. 2 of 13 of PDF), that but further aids the court’s decision in dismissing Plaintiff’s case. It was not Plaintiff’s mere failure to file an amended complaint but his repeated attempts at failing to do much, if anything, during the action.

In the court’s 8/14/23 ruling, discovery responses were due to Defendant’s discovery by March 21, 2023. However, despite an extension to April 4, 2023 and to date of the 8/14/23 hearing, Plaintiff failed to provide any response whatsoever, despite contending otherwise in his opposition to the discovery motions. And it was not just with the discovery motions that Plaintiff engaged in dilatory tactics. Plaintiff failed to appear to multiple hearings.[1] Plaintiff did not fail to appear once, not twice, not three times, but four times to a hearing. Plaintiff failed to appear at the 2/14/23 hearing on the City’s demurrer; Plaintiff failed to appear to the 4/26/23 OSC Re: Why the Case Should Not Be Dismissed for Plaintiff's Failure to Appear; failed to appear to the CMC on 5/5/23; and failed to appear at the 7/06/23 OSC Re: Why the Court Should not Dismiss the Entirety of Case.

To the extent that Plaintiff avers this time will be different, the motion itself evidences otherwise.

First, regarding service: According to Plaintiff, he served the City with notice of the motion on 2/14/24. For one, a party to an action may not serve papers. Second, the POS (Motion p. 36 of 36 of PDF) indicates that the documents Plaintiff served were discovery motions, which is not the motion at issue. For Plaintiff to seek relief without adhering to the fundamental rules of due process and by fraudulently informing this court that party was served is conduct that warrants sanctions, and ultimately ties into the City’s position that Plaintiff’s conduct has been “contemptuous from the outset.” (See 8/14/23 ruling.)

Second, regarding counsel: Plaintiff contends that he has hired counsel to litigate the matter for him. Indeed, a ‘Reply’ was filed by counsel Kevin Anderson wherein counsel conclusively states, without acknowledging the series of events that have transpired in this case, that “any doubt in applying section 473 be resolved in his favor of the party seeking relief.” (Reply p. 3 of 5 of PDF.) Based on the foregoing, however, there is no doubt that the case should not be resolved in Plaintiff’s favor.  

All in all, while failing to appear at one hearing or by failing to response to discovery motion may be a valid mistake, Plaintiff failed to appear, failed to respond to discovery, and failed to oppose motions “over and over again.” (Sur-Reply p. 2:11-12.) Doing the same thing repeatedly is no longer a mistake; it is intentional. As Plaintiff states, he has incurred medical bills exceeding $20,000.00, property damages of approximately $5,000.00 and loss of income in the range of $6,000.00. (Motion p. 7 of 36 of PDF.) If the case was so important, Plaintiff would not attempt at the eleventh hour to voice his insincere commitment to prosecuting the case.[2]

Conclusion

Based on the foregoing, as Plaintiff’s motion but further evidences that he is not and will not diligently and properly litigate his case, the motion is denied with prejudice.