Judge: H. Jay Ford, III, Case: 21STCV05390, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV05390    Hearing Date: April 13, 2023    Dept: O

  Case Name:  Martinez v. Bird Rides, Inc.

SUBJECT:                 MOTION TO VACATE DISMISSAL AND PLACE MATTER BACK ON ACTIVE CALENDAR

MOVING PARTY:   Plaintiff Katherine Martinez

RESP. PARTY:         Defendant Segway, Inc.

TENTATIVE RULING

            Plaintiff Katherine Martinez’s Motion to Vacate Dismissal and Place Matter Back on Active Calendar is GRANTED.

            The action was dismissed pursuant to CCP §581(b)(3) on 8-10-22 when Plaintiff failed to appear at trial.  CCP §581(b)(3) provides, “An action may be dismissed in any of the following instances:…(3) By the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial.”  In Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1010, 59 Cal.Rptr.2d 350 (Vernon ) and Link v. Cater (1998) 60 Cal.App.4th 1315, 71 Cal.Rptr.2d 130 (Link ) the Court of Appeal has explained when dismissal is within the trial court's discretion and when it exceeds the trial court's discretion.

            Plaintiff filed this motion 13 days after entry of the dismissal.  Plaintiff cites to both the mandatory and discretionary provisions of CCP §473(b) as grounds for relief.  Plaintiff’s counsel failed to appear at the 8-10-22 OSC re: Failure to Appear and Nonjury Trial due to a calendaring error.  See Motion, Dec. of P. Hakim, ¶6. 

, relief from default judgment is mandatory based on an attorney affidavit of fault, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence or neglect.  The trial court may also deny the motion if it finds that the attorney's declaration of fault is not credible.  See Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.

Under CCP §473(b), mandatory relief cannot be obtained from a judgment entered after a party failed to appear at trial.  Entry of judgment after a trial court holds an uncontested trial is not a “dismissal” or “default” for purposes of CCP §473(b)’s mandatory relief provision.  See Noceti v. Whorton (2014) 224 Cal.App.4^th 1062, 1064 (entry of judgment for defendant and against plaintiff after plaintiff failed to appear at trial was not tantamount to dismissal under mandatory provision of CCP §473(b); trial court “reviewed the entire file” before granting judgment for defendant in the amount of “$0 principal, $0 prejudgment interest, $0 attorney fees and $0 costs); Vandermoon v. Sanwong (2006) 142 Cal.App.4^th 315, 321 (judgment rendered against defendant after his failure to appear was not procedural equivalent of a default).

Conversely, under CCP §473(b) the Court does have discretion to vacate a dismissal entered based on an attorney's mistake, inadvertence or neglect.  Based on Plaintiff’s counsel’s declaration, the dismissal entered on based on failure to appear at trial was was due to counsel mistake and/or excusable neglect.  Plaintiff’s request for relief pursuant to CCP §473(b) is GRANTED. 

            In addition, “[t]he 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.  (CCP §473(b).)  Defense counsel is ordered to pay mandatory sanctions to Plaintiff pursuant to CCP §473(b). The Parties are ordered to meet and confer regarding the amount of such sanctions and Plaintiff is to submit the proposed order.