Judge Elaine W. Mandel, Case Number: 22STCV19241, Date: 2024-06-28 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22STCV19241, Date: 2024-06-28 Tentative Ruling

Case Number: 22STCV19241 Hearing Date: June 28, 2024 Dept: P

Tentative Ruling

Moqaddem v. Pinto, Case No. 22STCV19241

Hearing Date June 27, 2024

Plaintiff Moqaddem’s Motion to Vacate Void Order Dated 5/23/23

Plaintiff sued Pinto but did not serve the underlying complaint. This case was related to 21STCV25467, Pinto v. Visconti, pending in Dept. P. That order was mailed by the clerk to Moqaddem, who was then self represented on 2/17/23.

It came on for CMC on 3/21/23, and plaintiff did not appear. The clerk mailed notice to Moqaddem on 3/21/23, setting a further CMC and OSC re failure to appear and OSC re failure to file proof of service for 4/24/23. On that day, there was no appearance for plaintiff, and the court continued the hearings, set an additional failure to appear and an OSC re dismissal for 5/23/23. Notice was mailed to Murphy, Moqqadem’s then-counsel. There was no appearance on 5/23/23, and the court dismissed the matter without prejudice.

On 6/20/23 Murphy filed a Motion to Vacate Void Order dated 5/23/23. He got a hearing date of 7/21/23, as stated on the pleadings. Then plaintiff moved the date on multiple occasions, from 7/21/23 to 9/27/23, then to 2/2/24, then to its current date of 6/28/24. The court did not continue the hearing; this was done by plaintiff’s counsel via the court reservation system. This matter is now on hearing for 6/28/24.

The court notes a prior tentative ruling by this court granting this motion was posted on 7/20/23, in advance of the 7/21/23 hearing. However, plaintiff moved the hearing date, as noted above.

Plaintiff moves under Code of Civil Procedure section 473(d) to vacate the 5/23/23 order dismissing as being void.

Plaintiff argues the order is void because this court transferred this case from another courthouse without any court order. This argument fails. There was a February 17, 2023 court order that related this case to 21STCV25467, in accordance to Cal. Rules of Court, rule 3.300(a). 2/17/23 Minute Order. Good cause was shown to reassign this case to Dept. P. Id. The clerk gave notice. Id.

Second, plaintiff argues this order “totally confused Plaintiff and her counsel believing that all hearing for both cases 21STCV25467 and Case 22STCV19241 will be heard on the same day,” and that “the case should have been scheduled on the same hearing date for [the] other case on May 19, 2023” which “totally confused Plaintiff and her attorney in this case.” Motion, pp. 2, 6. In fact, the two matters WERE heard on the same day, 3/21/23. Plaintiff did not appear on either matter.

Plaintiff seems to argue excusable neglect under Code of Civil Procedure sec. 473(b). Excusable neglect exists when reasonably prudent person in similar circumstances might have made same error. County of San Bernardino v. Mancini (2022) 83 Cal.App.5th 1095, 1103. The court does not view the circumstances of this case as the result of an error by a reasonably prudent person. The facts indicate plaintiff and counsel were aware of this case. The court finds plaintiff does not sufficiently indicate dismissal was entered as the result of excusable neglect.

The motion argues plaintiff and her attorney were never served notice about the May 23, 2023 hearing, which makes the May 23, 2023 dismissal order void. However, the clerk gave notice on 4/24/23 to Murphy, plaintiff’s counsel of record.

None of this explains the fact that plaintiff moved this motion at least three times, over the span of almost a year from the date the matter was first set to be heard. There is no basis to grant this motion. As such, the motion is DENIED.