Judge: Deborah C. Servino, Case: 30-2021-01222774, Date: 2023-01-06 Tentative Ruling
Plaintiffs Tommy Le and Huong Thi Nguyen’s unopposed motion for relief from dismissal, is granted.
Relevant Background
On April 8, 2022, Defendants PV Holding Corp., Avis Budget Group, Inc, and Fresenius Medical Care Bakersfield, LLC’s motion for change of venue to transfer this case to Kern County was granted. The court ordered Defendants to submits a proposed order for the Court’s signature within 10 days. The ruling specified that the order must contain six specific provisions. The court set a hearing on an order to show cause re: dismissal for July 1, 2022. (4/8/2022 Minute Order.) On April 11, 2022, Defendants submitted the proposed order. (ROA 81.) On April 12, 2022, the court signed the proposed order with changes. Specifically, the order provided in part: “Upon payment of all necessary fees required by law, this matter is transferred to the Superior Court of California, Kern County . . .” (Order [ROA 91], emphasis in original.) The order further noted that if costs and fees were not paid within 60 days after service of notice of the transfer order, the Court may dismiss the action without prejudice. (Order.) On April 19, 2022, Plaintiffs were served by email or electronic transmission with the transfer order. (ROA 93.)
At the July 1, 2022 hearing, defense counsel for the moving Defendants apprised the Court that they had not received notice of a Kern case number or notice that the transfer fees had been paid. Finding that notice of the order to show cause had been properly given, the Court ordered the entire action dismissed without prejudice. (7/1/2022 Minute Order.)
Applicable Law
Code of Civil Procedure section 473, subdivision (b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” Code of Civil Procedure section 473, subdivision (b) provides for two types of relief. (Leader v. Health Industries of Am., Inc. (2001) 89 Cal.App.4th 603, 615.) A court may grant discretionary relief upon the moving party’s showing of mistake, inadvertence, surprise or excusable neglect. (Id. at pp. 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (Id. at p. 616.)
Code of Civil Procedure section 473, subdivision (b) does contain a time limit - “the application shall be made within a reasonable time, in no case exceeding six months, after the judgment dismissal, order or proceeding was taken.”
Merits
The motion is timely. It was filed approximately four months after the entire action was dismissed. In support of this motion, Plaintiffs offer a declaration from attorney Robert Younger, who asserts that the dismissal resulted from attorney fault. Counsel stated: “Plaintiffs had completed their obligation to post transfer fees[,] [h]owever, this office missed the July 1, 2022 hearing due to a calendaring error.” (Younger Decl., at ¶ 6.) Counsel indicated the July 1, 2022 hearing was properly calendared. However, counsel missed the hearing as he accidentally logged into his firm’s Time Matters Calendaring System as an individual user, which did not provide him access to the firm’s calendar. (Younger Decl., at ¶ 8.) Counsel appears to assume that the action was dismissed because of counsel’s failure to appear at the hearing on the order to show cause re: dismissal. On the contrary, the record indicates that Plaintiffs did not pay the required transfer fees and dismissal was entered for this reason. (7/1/2022 Minute Order.)
It appears that Plaintiffs are mistaken that they had paid transfer fees. On April 13, 2022, Plaintiffs filed a document entitled “Notice of Payment of Transfer Fees.” (ROA 89.) This document was filed before Plaintiffs were served with the signed transfer order. Despite its title, the contents of the document appear to only give an abbreviated notice of the Court’s ruling on the motion to transfer, specifically, that the Court ordered: (1) Defendants’ motions to transfer venue is granted; (2) this matter is to be transferred to the Superior Court; and “Plaintiffs hereby submit the transfer fees.” (ROA 89.) No fees were actually submitted or collected when that document was filed. Plaintiffs never paid all necessary fees required by law to transfer the case. Only the document was filed.
Counsel’s declaration as to his failure to appear at the July 1, 2022 hearing, does not warrant mandatory relief. (See Code Civ. Proc., § 473, subd. (b).) However, Plaintiffs’ apparent mistake or inadvertence as to the failure to pay transfer fees, appears to warrant discretionary relief. (Code Civ. Proc., § 473, subd. (b).) Accordingly, the motion is granted. The July 1, 2022 dismissal is hereby set aside.
No later than February 6, 2023, Plaintiffs are to pay all required transfer fees and costs. If those costs and fees are not paid by February 6, 2023, the court may dismiss the action without prejudice on the condition that no other action on the cause may be commenced in another court prior to satisfaction of the Court’s order for costs and fees. (Code Civ. Proc., § 399, subd. (a).) Upon payment of all the necessary fees required by law, this matter is transferred to the Superior Court of California, Kern County, located at 1215 Truxtun Avenue, Bakersfield, CA 93301. Upon payment of all the necessary fees required by law, the clerk of this court is also referred to this court’s April 12, 2022 Order.
The court hereby sets a hearing on an order to show case re: dismissal for February 24, 2023, at 9 am in this Department.
Plaintiffs shall give notice of this ruling and of the February 24, 2023 OSC hearing.