Judge: Daniel M. Crowley, Case: BC706474, Date: 2022-10-04 Tentative Ruling

Case Number: BC706474    Hearing Date: October 4, 2022    Dept: 28

Plaintiffs Knarik Telmi and Emin Gorjian’s Motion to Vacate Entry of Dismissal

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

BACKGROUND

On May 24, 2018, Plaintiff Knarik Telmi (“Telmi”) filed this action against Defendants Salvador Vasquez Martinez (“Martinez”) and Esquer Freight System, Inc. (“EFS”) for motor vehicle negligence and general negligence.

On July 25, 2018, Plaintiff Emin Gorjian (“Gorjian”) filed an action against Defendants Martinez and EFS.

On October 12, 2018, EFS filed an answer to both complaints.

On March 10, 2022, the Court dismissed Martinez from both complaints.

On June 16, 2022, Plaintiffs filed a Motion to Vacate Dismissal to be heard on September 22, 2022. The Court continued the hearing on the motion to October 4, 2022. On September 15, 2022, EFS filed an opposition. On September 27, 2022, Plaintiffs filed a reply.

PARTY’S REQUESTS

Plaintiffs request the Court vacate dismissal as it was due to Plaintiffs’ counsel’s mistake.

EFS requests 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.)

CCP §583.250 provides that if service is not made within the prescribed time limit, three years, the action must be dismissed by the Court. The provision is mandatory and is not subject to extension excuse, or exception except as expressly provided by statute.

DISCUSSION

Plaintiffs’ application was filed within 6 months of dismissal.

Plaintiffs’ counsel submitted a declaration stating that they mistakenly calendared only the trial date and not the concurrent order to show cause hearing, resulting in a failure to file a declaration regarding efforts to serve Martinez. Plaintiffs served Martinez according to the Hague Convention on October 20, 2021. Plaintiffs did not receive the necessary documents to demonstrate proof of service until April 27, 2022.

EFS argues that the subject dismissal is not subject to CCP 473. Plaintiffs originally filed the complaint on May 24, 2018. May 24, 2021, would have been the end of the three-year service window. As the dismissal was entered pursuant to CCP §538.250, declaration of attorney’s mistake is insufficient to vacate dismissal.

Plaintiffs argues that there the three-year period for service was tolled because Martinez was not amenable to the process of the Court. The Court disagrees. A party is amenable to service so long as there is sufficient basis for personal jurisdiction over any given defendant. (Watts v. Crawford (1995) 10 Cal.4th 743, 755.) California provides that the way to properly serve a foreign defendant is to abide by the Hague Convention, meaning there was a sufficient basis to establish personal jurisdiction over Martinez. Plaintiffs failure to comply with those requirements until after the window to serve the summons was closed was not because Martinez was not amenable to service—it was because Plaintiffs’ counsel did not take timely steps to make sure service was effectuated within the time period.

Plaintiffs also argue that service was impracticable and futile as Martinez lived in Mexico. The Court is unconvinced by this argument. Other litigants have no issues serving individuals living abroad—Plaintiffs simply failed to comply with the service requirements before the service period expired. The Court denies the motion.

CONCLUSION

Plaintiffs Knarik Telmi and Emin Gorjian’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.