Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a slip and fall case.  Plaintiff Mane Karapetian fell on a liquid spill at a bathroom located at the “Griffin Club Los Angeles”.  Defendants Meriwether Companies LLC, Singerman Real Estate LLC, Derek Strader, Out-FitNRG, LLC and Out-FitNRG Inc. own and operate the club.  As a result of the accident, Plaintiff alleges she sustained severe injuries including a broken nose, concussion as well as cervical and lumbar disc injuries.   

Plaintiff previously moved to vacate an order of dismissal of her Complaint.  Plaintiff’s complaint was dismissed because she failed to serve Defendants within 60 days of the filing of her complaint as required under Local Rule 7.7.  Plaintiff argued that her motion to vacate should be granted under Code Civ. Proc. 473(b) due to its attorney’s neglect in believing that ongoing settlement negotiations with Defendants’ insurance carriers was sufficient cause for the Court to grant additional time to effect service.  The Court denied the motion to vacate.   

Plaintiff now seeks reconsideration.  Plaintiff argues that Defendants’ carriers were on notice of the pending action and were working to resolve the matter, and two attorneys for Defendants were actively involved in pre-litigation discovery to bring about an amicable resolution.  Plaintiff argues these are “different facts” demonstrating that no Defendant was prejudiced by the fact that the summons and complaint had not been served within the 9 months leading to the order of dismissal, and these “different facts” warrant reconsideration.  Plaintiff also argues that these “different facts” were not previously presented to the Court in the prior motion because counsel mistakenly believed Plaintiff was entitled to mandatory relief under Code Civ. Proc. § 473, and for mandatory relief, counsel need not show that the mistake, inadvertence, surprise or neglect was excusable.  No opposition was filed as of the posting of this tentative ruling.   

LEGAL STANDARD 

Pursuant to¿Code Civ. Proc. §1008(a):¿ 

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civ. Proc., §1008(a).)¿ 

 

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.”¿ (Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499.)  There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence, different facts, or law earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.)¿ A motion for reconsideration is properly denied when it is based on evidence that could have been presented in connection with the original motion.¿ (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460;¿Hennigan v. White (2011) 199 Cal.App.4th 395, 406.)  

DISCUSSION 

Plaintiff proffers two “different facts”: (1) Defendants’ carriers were on notice of the pending action and were working to resolve the matter, and (2) two attorneys for Defendants were actively involved in pre-litigation discovery to bring about an amicable resolution.  These facts warrant a finding that counsel’s mistake in believing that he did not serve Defendants while settlement negotiations were ongoing was excusable.   

Any doubt in applying section 473, subdivision (b), must be resolved in favor of the party seeking relief.  (Bonzer v. City of Huntington Park (1993) 20 Cal. App. 4th 1474,¿1477-1478.)   

Where relief is promptly sought and no prejudice would be done to the opposing party, only very slight evidence is required to justify the setting¿aside of a default.  For this reason orders denying relief under section 473 are carefully scrutinized on appeal. (¿Rappleyea v. Campbell¿(1994) 8 Cal..4th 975, 980;¿Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 233.) 

Here, Plaintiff has shown there is no prejudice to opposing party, and accordingly, only very slight evidence is required to justify vacating a default.  Given the “strong public policy  in¿favor¿of granting relief and allowing the requesting party his or her day in court,” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82), the Court will grant the motion for reconsideration.     

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion for reconsideration.  The Court vacates the dismissal, and sets a case management conference for April 4, 2024 at 9:00 a.m. 

 

IT IS SO ORDERED. 

DATED: January 31, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court