Judge: Gregory Keosian, Case: BC692702, Date: 2022-12-06 Tentative Ruling

Case Number: BC692702    Hearing Date: December 6, 2022    Dept: 61

Plaintiff Elena Mondragon’s Motion to Vacate Dismissal is DENIED.

Defendants to provide notice.

I.                MOTION TO VACATE DISMISSAL

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.

(Code Civ. Proc. § 473, subd. (b).)

Plaintiff Elena Mondragon (Plaintiff) seeks relief from this court’s order of June 20, 2022, which granted Defendants’ motion for terminating sanctions for failure to appear for her deposition, despite two prior court orders that she attend. Plaintiff submits a declaration stating that English is her second language, that she represented herself in pro per through the relevant motions, and that she does not understand the litigation process. (Mondragon Decl. ¶ 3.) Plaintiff states that she was confused by Defendant’s emails seeking to set her deposition prior to her retention of an attorney, and that she did not understand the difference between proceedings in this case and proceedings in another court case which she was prosecuting in Beverly Hills. (Mondragon Decl ¶ 5.) Plaintiff claims she was not aware of the first order denying terminating sanctions that took place on April 6, and that she only became aware of the last hearing for terminating sanctions on June 3, 2022, shortly before the scheduled hearing date of June 6, and immediately scrambled to obtain counsel and arrange to attend deposition. (Mondragon Decl. ¶ 7.)

The evidence contradicts Plaintiff’s assertions. English may not be Plaintiff’s first language, but she has little trouble communicating with court or counsel, or understanding legal procedure, as demonstrated by the lengthy emails she has sent to Defendants’ attorneys throughout and concerning these proceedings. (See Turner Decl. Exhs. A–D.) Plaintiff appeared remotely for the hearing on the first motion to compel deposition and argued her position — which was, through the relevant period, that she could not attend deposition until she obtained an attorney, despite already having had her deposition delayed so she could find one. (Turner Decl. ¶ 4.) Indeed, this court’s orders of February 7 and April 6, 2022, were based on Plaintiff’s failure to attend deposition on dates that she herself had selected. (Turner Decl. Exh. B at p. 18; Exh. C at p. 45.) Plaintiff was not confused by Defendants’ emails and motions, but was simply adamant that her court-ordered deposition would wait until she was ready.

Plaintiff’s other contentions fail. She was demonstrably aware of the distinction between this action and the other Beverly Hills case, as evidenced in an email she sent describing both cases on February 8, 2022. (Turner Decl. Exh. C at p. 45.) And although Plaintiff denies having notice of the first motion for terminating sanctions (which this court denied), she offers no evidence to contradict the proof of service included with that motion, which was based on her address of record in both this case and the concurrent action in Beverly Hills. (Turner Decl. Exh. G.) It is also not true that Plaintiff was unaware of the pendency of the final motion for terminating sanctions; Plaintiff admits to knowledge of the motion as early as June 3, 2022, and the hearing was ultimately held on June 20, 2022, during which Plaintiff was represented by counsel. (Mondragon Decl. ¶ 7.) The evidence demonstrates that Plaintiff’s case was dismissed on that date because of her willful pattern of discovery misconduct, not mistake, inadvertence, or excusable neglect.

The motion is DENIED.