Judge: Daniel M. Crowley, Case: 20STCV02082, Date: 2023-01-30 Tentative Ruling

Case Number: 20STCV02082    Hearing Date: January 30, 2023    Dept: 28

Non-Party Mark Haley’s Motion to Vacate Entry of Dismissal

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

BACKGROUND

On January 16, 2020, Plaintiffs Margaret Haley (“Margaret”) and James Haley (“James”) filed this action against Defendants PBOOS Express, LLC (“PBOOS”), Leonard Hernandez (“Hernandez”), Roberto Suarez (“Suarez”) and Best Yet Express (“Best”) for wrongful death, negligence, negligence per se, statutory liability, negligent hiring, retention, supervision and training and negligent entrustment.

On May 4, 2020, Plaintiffs filed the FAC.

On May 19, 2020, Plaintiffs filed the SAC.

On June 16, 2020, Defendants filed an answer.

On April 30, 2021, the Court dismissed the action, with prejudice, pursuant to Plaintiffs’ request.

On January 12, 2022, Non-Party Mark Haley (“Mark”) filed a Motion to Vacate Dismissal and Join Mark Haley as Plaintiff to be heard on July 12, 2022. The Court continued the hearing on this motion to January 30, 2023. On December 16, 2022, Defendants filed an opposition. On January 23, 2023, Mark filed a reply.

PARTY’S REQUESTS

Mark requests the Court vacate dismissal and add Mark as a party.

Defendants request the Court deny the 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

First, the Court notes that Mark is not a party to this action. He has no standing to request this relief. Mark previously attempted to join as a Plaintiff and prevent the dismissal of this action. The Court denied both requests in December of 2021. Mark’s new motion is effectively a motion for reconsideration, as it asks the Court to rule on the same issues, simply asking the Court to vacate dismissal rather than “deny” Plaintiffs’ motion to dismiss. This is effectively the same request, as dismissal was already entered before the time of Mark’s request. Mark’s request does not comply with the requirements for a Motion for Reconsideration, as it was not filed within 10 days of Mark’s notice of the previous ruling. CCP § 1008. These grounds alone are sufficient to warrant the Court’s denial of the motion.

Additionally, Mark’s application was not filed within 6 months of dismissal. 182 days after the initial dismissal date was October 29, 2021—more than 2 months prior to Mark’s filing. Mark argues he should not be subject to the time requirements as the Court can set aside judgment on the grounds of extrinsic fraud or mistake; however, the Court has already ruled that Mark’s lack of involvement in this case did not constitute fraud or mistake.

Based on the above, the Court denies the motion.

CONCLUSION

Non-Party Mark Haley’s Motion to Vacate Entry of Dismissal is DENIED.

            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.