Judge Daniel M. Crowley, Case Number: 22STCV34320, Date: 2024-03-06 Tentative Ruling

All parties are urged to meet and confer with all parties
concerning this tentative ruling to see if they can reach an agreed-upon
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agreement, please notify the courtroom staff in advance of the hearing if
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authority not to allow the withdrawal of a motion and to adopt the tentative
ruling as the order of the court.

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Plaintiff Markella Thanou’s unopposed motion to vacate and set aside the judgment of dismissal entered on October 26, 2023, on the Court’s own motion, is granted.

Plaintiff Markella Thanou (“Thanou”) (“Plaintiff”) moves unopposed for this Court to vacate and set aside the judgment of dismissal entered on October 26, 2023, on the Court’s own motion, on thirteen grounds, including that Plaintiff’s Counsel admitted that due to excusable neglect, mistake, inadvertence, he was unable to appear at 8:30am on October 26, 2023 and was unable to connect to the LA Court Connect to appear absent a prior court reservation. (Notice of Motion, pgs. 1-3; C.C.P. §§473(b), 128.)

On October 25, 2022, Plaintiff filed her Complaint in pro per against Defendant Cedars-Sinai Medical Center (“Cedars-Sinai”) (“Defendant”) alleging a single cause of action for general negligence arising from Defendant’s alleged failure to take proper care of Demetrios Fontinatos. (See Complaint.)

On October 26, 2023, this Court ordered Plaintiff’s Complaint dismissed without prejudice pursuant to C.C.P. §583.150. (10/26/23 Minute Order.)

Plaintiff filed the instant motion on October 30, 2023. As of the date of this hearing no opposition has been filed.

The court is empowered to relieve a party “upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P. §473(b).)

C.C.P. §473(b) consists of two distinct parts: “a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.)

“[W]henever 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, [the court shall] vacate any resulting . . . dismissal entered against his or her client.” (C.C.P. §473(b).) The court must set aside the dismissal “unless the court finds that the . . . dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (C.C.P. §473(b).)

Although C.C.P. §473(b) relief normally must be sought within six (6) months after the dismissal is entered, an unauthorized dismissal may be vacated at any time; i.e., “within a reasonable time after [the client’s] learning of it, regardless of the time limitations in section 473.” (Whittier Union High School District v. Superior Court (1977) 66 Cal.App.3d 504, 509.)

Plaintiff’s counsel declares Plaintiff filed this case and has prosecuted the same in pro persona, but Plaintiff recently engaged counsel when she could not continue to prosecute the same in pro per due to her age and health. (Decl. of Opia-Enwemuche ¶5.) Plaintiff’s counsel declares the case was filed last year, and the case became statute barred on October 25, 2022. (Decl. of Opia-Enwemuche ¶5.)

Plaintiff’s Counsel declares a dismissal of this case has significant implications on the statute of limitation, and this makes it impossible for refile this case without being barred; all Plaintiff’s negligence were effectively statute barred by October 25, 2022. (Decl. of Opia-Enwemuche ¶6.) Plaintiff’s counsel declares that if the dismissal is allowed to stand, Plaintiff will be effectively barred from filing any claims for negligence, which is integral to the case at hand. (Decl. of Opia-Enwemuche ¶6.)

Plaintiff’s Counsel declares that once Plaintiff engaged him as legal counsel, he took steps to have the Plaintiff execute his Substitution of Attorney to enable me properly to get into the case. (Decl. of Opia-Enwemuche ¶7.) Plaintiff’s Counsel declares that although that was on-going, he attempted to join the court proceeding via LA Court Connect but could not do so since he did not make a prior reservation. (Decl. of Opia-Enwemuche ¶7.) Plaintiff’s Counsel admits that due to excusable neglect, mistake, inadvertence, he was unable to appear at on October 26, 2023. (Decl. of Opia-Enwemuche ¶11.)

There is also no prejudice to any of the parties in this case and it is less than six months since this Court, on its own motion, dismissed the case and the instant motion was filed.

Plaintiff’s motion is timely and within the time allowed by the Code, and Defendant will also not be prejudice by the setting aside of the judgment. Therefore, relief is granted because the conduct is excusable. The Court imposes a sanction of $100 payable by Attorney Opia-Enwemuche for not appearing at the hearing. (Code of Civil Procedure 473(c)(1)(A).

Conclusion

Plaintiff’s unopposed motion to set aside the judgment of dismissal entered on October 26, 2023, is granted. The Court sets a hearing on an Order to Show Cause on April 22, 2024 at 8:30 a.m. why the case should not be dismissed and/or Plaintiff’s counsel sanctioned $250 for Plaintiff’s failure to file proof of service of the complaint.

Attorney Opia-Enwemuche is ordered to pay $100 by April 5, 2024 for failing to appear on October 26, 2023.

Hon. Daniel M. Crowley

Judge of the Superior Court