Judge Elaine W. Mandel, Case Number: 22STCV19241, Date: 2024-11-22 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22STCV19241, Date: 2024-11-22 Tentative Ruling

Case Number: 22STCV19241 Hearing Date: November 22, 2024 Dept: P

Tentative Ruling

Moqaddem v. Pinto, Case no. 22STCV19241

Hearing date November 22, 2024

Plaintiff’s Motion to Vacate Void Order of 6/26/24

Plaintiff sued defendant for breach of contract, fraud, professional negligence and sexual battery arising from defendant’s alleged fraudulent procurement of a marriage license. The court dismissed the complaint without prejudice on 5/23/23. Min. Order 5/23/23. Plaintiff moves to vacate the court’s 5/23/23 order as void for lack of notice. No opposition was filed.

The court previously denied a motion to vacate the 5/23/23 order for lack of service and on the merits, and the instant motion is the same motion re-filed with notice. Min. Order 6/28/24. The court’s previous ruling, below, stands.

On April 24, 2023, this court called for hearing the CMC, OSC Re: Plaintiff’s Failure to Appear on 03/21/23, and OSC Re: Failure to file Proof of Service. Min. Order 4/24/23. There was no appearance by plaintiff, so the hearing was continued to May 23, 2023. Id.

On May 23, 2023, in addition to the proceedings above, this court also heard an OSC Re: Dismissal. Min. Order 5/23/23. There were no appearances. The court issued an order noting the defendant was not served and ordered the complaint filed by Moqaddem be dismissed without prejudice. Id.

First, 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 explained this case was related to another case in Dept. P in accordance to Cal. Rules of Court, rule 3.300(a). Min. Order 2/17/23. 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. The only relief which this statement could comport with is excusable neglect under Code of Civil Procedure section 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 her counsel were aware of this case but did not understand that this case had different hearing dates than the related case. The court finds plaintiff does not sufficiently indicate that dismissal was entered as the result of excusable neglect.

Third, 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, and therefore this motion is made pursuant to Code of Civil Procedure section 473(d) so that this court can set aside a void order. This argument is unsupported. Section 473(d) provides a trial court may, on motion of either party after notice to the other party, set aside any void judgment or order. A judgment is void if the trial court lacks jurisdiction in a fundamental sense, as where it lacked subject matter jurisdiction, lacked personal jurisdiction over the defendant, or granted relief the court had no power to grant. People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660; Estate of Buck (1994) 29 Cal.App.4th 1846, 1854; Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

On April 24, 2024, the court clerk filed a certificate of mailing of the 4/24/23 Minute Order, which noted the May 23, 2023 hearing date, to plaintiff’s counsel, George Murphy. 4/24/23 Certificate of Mailing. Evidence Code section 641 creates a rebuttable presumption that a properly addressed letter has been received. Counsel contends that his mail is monitored daily, and he was never served notice of the May 23, 2023 hearing (Murphy Decl. para. 3) but that is not enough to overcome the rebuttal presumption. Therefore, plaintiff’s third argument fails.

DENIED.