Judge Deirdre Hill, Case 20TRCV00279 2023-04-07 Tentative Ruling

ALERT

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The motion is GRANTED. The court sets aside and vacates the dismissal entered on February 2, 2023. An OSC re dismissal is set for September _____, 2023, at 8:30 a.m.

On March 30, 2020, plaintiff Ruby Ocampo filed a complaint against Sunshine Home Care 1, LLC for violations of Labor Code and violation of Bus. and Prof. Code §17200. Plaintiff alleges that in April 2018, she interviewed for a position in defendant’s elderly care facility. She was advised that the rate of pay was $85/day for an 8-hr. workday, five days a week, and plaintiff was hired. She was presented with defendant’s Operating Agreement and was told to sign it as part of her hiring process. Plaintiff is Filipino and has a limited grasp of understanding English with ease, so she did not know at the time the impact of signing defendant’s Operating Agreement. From the beginning of her employment, plaintiff worked 12-hr. shifts, not the 8-hr. shifts represented to her. She also was required to live at the facility and be on-call for the remaining 12 hours of the day. Those on-call hours were not considered plaintiff’s free personal time so she did not leave the facility during those times. She worked without incident until late March 2019, at which time she suffered from a bout of high blood pressure. She worried that the stress of her employment would exacerbate her medical condition, so she decided to resign her position on March 28, 2019. Under the agreement, she was to be paid $425/week, which represented her share under the agreement. She was not provided the requisite meal breaks or rest breaks due to defendant’s inducement to get her to sign the agreement.

On October 2, 2020, defendant filed a cross-complaint against plaintiff for breach of contract and breach of fiduciary duties.

On June 24, 2021, plaintiff filed a notice of conditional settlement, stating that a request for dismissal will be filed no later than April 1, 2022.

On May 4, 2022, the court denied plaintiff’s motion to enforce settlement agreement without prejudice.

On July 18, 2022, at the OSC re dismissal, counsel represented that the parties were still waiting for the worker’s compensation case to be resolved.

On October 27, 2022, the OSC re dismissal was continued to February 2, 2023. Notice was waived.

On February 2, 2023, the court ordered that the complaint and the cross-complaint be dismissed without prejudice.

CCP §473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . . was taken. . . . 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. . . .”

Pursuant to CCP §473(b), plaintiff requests that the court vacate the order of dismissal on February 2, 2023.

Plaintiff contends that for the OSC re dismissal on February 2, 2023, plaintiff’s counsel registered for a remote appearance via the LACourtConnect link to make his appearance. Counsel states in his declaration that on the hearing date counsel logged into the hearing link, registered for the appearance, and waited for the court to give access through the “Join Now” button. Counsel states that “I waited on the phone for well over an hour and was never provided access to the hearing.” Counsel states that “I eventually hung up and called the department and was told that the case had been dismissed and defense counsel was to give notice. To date no notice has been given by defense counsel.” Plaintiff requests that the case be reinstated to the docket because the worker’s compensation claim has not yet been dismissed, which is a condition of the settlement. Plaintiff notes that the OSC hearing had been continued previously because the worker’s compensation case had not yet been dismissed. Plaintiff further explains that the reason the worker’s compensation case has not been dismissed is because the lien for the physician who treated plaintiff has not been paid and the attorney hired by the physician to collect on the lien has a lien on the case. Counsel further states that plaintiff’s employer defendant was uninsured as to worker’s compensation and that the administrative law judge set an MSC in August 2023 to see if the lien issues can be settled; otherwise, it will go to trial. See Randall Paulson decl.

In opposition, defendant argues that the dismissal was not the result of plaintiff’s counsel’s mistake, inadvertence, or neglect. Defendant also argues that it will be prejudiced if the court grants the motion.

The court finds that the dismissal was the result of plaintiff’s counsel’s surprise, mistake, inadvertence, or neglect for not appearing at the OSC hearing re dismissal despite being logged in to CourtConnect, whether it be from technical difficulties or other. Plaintiff has shown proof that counsel paid for a remote appearance. See also counsel’s declaration. In any event, as noted above, the OSC hearing re dismissal had been continued previously because the worker’s compensation case had not been dismissed, which purportedly is a condition of the settlement. Thus, if plaintiff’s counsel had appeared, counsel would have been able to explain the status of the worker’s compensation case and the court may not have dismissed the case or dismissed it pursuant to CCP §664.6.