Judge: George F. Bird, Jr., Case: 22CMUD00943, Date: 2023-04-04 Tentative Ruling

Case Number: 22CMUD00943    Hearing Date: April 4, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND  

            Plaintiffs Elvira Guzman and Margarito Granados Bonilla (“Plaintiffs”) filed the Complaint on August 5, 2022, against Defendants Elias Joel Rivera and Ana Delmy Magana (“Defendants”) alleging a cause of action for unlawful detainer. (Complaint (“Compl.”), ¶¶ 6, 7, 8.)  Plaintiffs filed a Request to Set Case for Trial on September 27, 2022. (See Request to Set Case for Trial filed on September 27, 2022.) The Clerk of the Court mailed a Notice of Unlawful Detainer Trial to both parties on September 30, 2022, informing the parties that trial was set for October 17, 2022. (See Notice of Unlawful Detainer Trial filed September 30, 2022.)

            Defendants’ counsel filed a Notice of Engagement of Trial Counsel on October 13, 2022, stating that Defendants’ counsel would be involved in a trial beginning on October 17, 2022. (See Notice of Engagement of Trial Counsel filed October 13, 2022.) The Notice of Engagement of Trial Counsel contains a Proof of Service statement demonstrating that notice was provided of this anticipated engagement on October 13, 2022, by email and mail service. (Ibid.) On October 17, 2022, counsel for both parties appeared and stipulated to continue the trial until November 16, 2022. (See Notice OF RULING RE: TRIAL CONTINUANCE filed October 17, 2022.)

            On November 16, 2022, counsel for both parties appeared and stipulated to continue the trial until December 19, 2022. (See Minute Order (Jury Trial) filed November 16, 2022.) On December 19, 2022, counsel for both parties appeared and, pursuant to the request of Plaintiffs, the trial was continued until January 23, 2023. (See Minute Order (Jury Trial) filed December 19, 2022.) Defendants’ counsel filed a Notice of Engagement of Trial Counsel on October 13, 2022, stating that Defendants’ counsel would be involved in a trial beginning on January 20, 2023. (See Notice of Engagement of Trial Counsel filed January 20, 2023.) The Notice of Engagement of Trial Counsel contains a Proof of Service statement demonstrating that notice was provided of this anticipated engagement on January 20, 2023, by email and mail service. (Ibid.)

            On January 23, 2023, counsel for both parties appeared and, pursuant to the request of Defendants, the trial was continued until February 22, 2023. (See Minute Order (Jury Trial) filed January 23, 2023.) The parties both acknowledged this continued date and notice was waived. (Ibid.) On February 22, 2023, Plaintiffs’ counsel failed to appear at trial. (See Minute Order (Jury Trial) filed February 22, 2023.) Pursuant to a request by Defendants, the trial was continued to March 8, 2023, and the defense was directed to give notice. (Ibid.) Defendants’ counsel filed a Notice of Engagement of Trial Counsel on March 7, 2023, stating that Defendants’ counsel was currently involved in a trial expected to end on March 15, 2023. (See Notice of Engagement of Trial Counsel filed March 7, 2023.) The Notice of Engagement of Trial Counsel contains a Proof of Service statement demonstrating that notice was provided of this anticipated engagement on March 7, 2023, by mail service. (Ibid.) On March 8, 2023, Plaintiffs’ counsel failed to appear at trial and Defendants’ counsel made an oral motion to dismiss the matter which was granted. (See Minute Order (Jury Trial) filed March 8, 2023.)

II.       MOTION TO SET ASIDE/VACATE DISMISSAL

A.    Motion to Set Aside/Vacate Dismissal filed on March 22, 2023.

            Plaintiffs bring this Motion to Set Aside/Vacate Dismissal (“Motion”) and argue that Defendants failed to comply with the February 22, 2023, court order that the defense provide notice of the continued trial date to Plaintiffs. Plaintiffs argue that the dismissal entered based on Plaintiffs failure to appear on March 8, 2023, was due to a parties “mistake, inadvertence, surprise, or excusable neglect” under Code of Civil Procedure section 473, subdivision (b).

B.     No Opposition filed.

             The court heard argument on Plaintiffs’ Ex Parte Application for Order Shortening Time on Motion to Set Aside Dismissal on March 27, 2023. (See Minute Order filed March 27, 2023.) The court granted the ex parte and ordered both parties to file briefs with the court and to serve opposing counsel by email no later than Thursday March 30, 2023, at 12:00 noon. (Ibid.) As of April 2, 2023, neither party has filed a brief with the court.

III.       LEGAL STANDARDS

            “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding 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 judgment, dismissal, order, or proceeding was taken….” (Code Civ. Proc., § 473, subd. (b).)

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IV.       REQUEST FOR JUDICIAL NOTICE

            Plaintiffs request that this Court take judicial notice of two Minute Orders issued in this matter. Under Evidence Code section 452, subdivision (d), the court may take judicial notice of records of any court of this state. This Court will take judicial notice of the Minute Order issued in this matter on February 22, 2023, and the Minute Order issued in this matter on March 8, 2023.

V.       DISCUSSION

            “The court's ‘discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.’ (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495, 52 Cal.Rptr.3d 862.)” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [71 Cal.Rptr.3d 65, 74], as modified (Jan. 16, 2008).) Here, Plaintiffs brought this Motion 14 days after dismissal was entered. This is well within the six-month timeframe established by Code of Civil Procedure section 473, subdivision (b).

             Plaintiffs argue that their failure to appear was due to Defendants failure to notify Plaintiffs of the continued trial date. On January 23, 2023, counsel for both parties appeared for trial and, pursuant to the request of Defendants, the trial was continued until February 22, 2023. (See Minute Order (Jury Trial) filed January 23, 2023.) The parties both acknowledged this continued date and notice was waived. (Ibid.) Then on February 22, 2023, Plaintiffs’ counsel failed to appear. Plaintiffs’ offer some argument related to a possible settlement offer on February 21, 2022, but such conversations or offers do not excuse Plaintiffs failure to appear. Defendants’ counsel requested a continuance of the trial on February 22, 2023, which was granted. (See Minute Order (Jury Trial) filed February 22, 2023.) Defendants were ordered to give notice to the Plaintiffs. (Ibid.)

            Plaintiffs argue that Defendants failed to provide notice of the continued trial date. There is no evidence that Defendants notified Plaintiffs. Even the Notice of Engagement of Trial Counsel filed on March 7, 2023, does not inform Plaintiffs of the March 8, 2023, trial date. (See Notice of Engagement of Trial Counsel filed March 7, 2023.) Plaintiffs do dispute the date of service of the Notice of Engagement of Trial Counsel, but regardless of when the notice was served, it does not notify Plaintiffs of the trial date.

            Without proper notice, it is reasonable that Plaintiffs would not appear at trial on March 8, 2023. Defendants chose to continue trial on February 22, 2023, and they were ordered to notify Plaintiffs. Though Plaintiffs’ counsel’s diligence is questionable for failing to appear on February 22, 2023, and then failing to investigate the court’s ruling on that date, the court’s discretion to deny a motion for relief based on excusable neglect is “limited to circumstances where ‘inexcusable neglect is clear’” and “any doubts as to that showing must be resolved in favor of the moving party.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420 [86 Cal.Rptr.3d 457, 469].) This Court finds that the failure to appear was excusable neglect based on Defendants failure to notify Plaintiffs. Defendants offer no evidence of any prejudice should the Court grant the motion.

            This Court further finds that it is unjust to allow Defendants to obtain a dismissal against Plaintiffs for failing to appear at trial when Defendants were required to notify Plaintiffs of the continued trial date and Defendants failed to do so.

VI.       CONCLUSION

            The Court rules as follows:

            The Court GRANTS this Motion to Set Aside/Vacate Dismissal.

            Plaintiffs are ordered to give notice.

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Dated: April 4, 2023                                                   __________________________________

                                                                                                Judge of the Superior Court