Judge: Gregory Keosian, Case: 22STCV06107, Date: 2023-10-05 Tentative Ruling

Case Number: 22STCV06107    Hearing Date: October 5, 2023    Dept: 61

Plaintiff Elia Diaz Ruiz’s Motion to Vacate Dismissal is GRANTED. Plaintiff’s counsel Joseph S. Park is directed to pay Defendant Victor Castro’s fees in the amount of $1,855.

Plaintiff to give notice.

I.                   MOTION TO VACATE DISMISSAL

Code of Civil Procedure section 473, subdivision (b) states:

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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310..

Plaintiff previously moved for relief from dismissal, based on the following facts, included in a prior motion filed on May 24, 2023. Plaintiff Elia Diaz Ruiz moves for relief from the dismissal entered on May 2, 2023. That dismissal was entered based on Plaintif’s failure to appear for a March 9, 2023 case management conference and a subsequent OSC re: dismissal. Plaintiff’s counsel, Joseph S. Park, offers a declaration stating that he attempted to appear for the OSC via LA Court Connect from his position on board a cruise ship celebrating an anniversary, but was cut off by sudden failure of internet communication. (Park Decl. ¶¶ 2–4.)

The motion based on the above facts was taken off-calendar on July 25, 2023, when Plaintiff failed to appear. The present motion was filed a week later, with Plaintiff’s counsel providing another affidavit of fault, this time explaining that on the date of the hearing in question, he made a point to appear in person, but took a wrong turn on the way to the courthouse, and arrived at the courtroom late, only to be told that his motion had already been taken off-calendar. (Supp. Park Decl. ¶¶ 2–3.)

The trifold failure of Plaintiff’s attorney to appear for hearings, including on Plaintiff’s own motion to vacate dismissal, is not excusable. However, Plaintiff has demonstrated entitlement to mandatory relief under Code of Civil Procedure § 473, subd. (b), by virtue of the first and second affidavits of fault submitted by Plaintiff’s counsel and his repeated-but-inadvertent failure to appear for hearings.

The present motion is unopposed, but Defendant in the prior motion requested sanctions, made mandatory for relief by affidavit of fault under section 473, subd. (b). Such sanctions are justly awarded here, as Defendant appeared for the prior hearing. Defendant sought $1,855.00 in fees and costs, representing three hours of paralegal work at $235 per hour, plus two hours of attorney work at $575 per hour related to the prior motion. (Stone Decl. ¶¶ 3–4.)

The motion is GRANTED. Plaintiff’s counsel is directed to pay Defendant’s fees in the amount of $1,855.

Dated: October 5, 2023