Judge Holly J. Fujie, Case 20STCV46212 2022-07-27 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

Plaintiff filed a complaint (the “Complaint”) on December 3, 2020 alleging causes of action which arise out of an employment relationship. Following a nonappearance case review on April 14, 2022, the Court dismissed the action for failure to file joint trial documents. On June 20, 2022, Plaintiff filed a motion to vacate the dismissal pursuant to CCP section 473, subdivision (b) (the “Motion”).

CCP section 473, subdivision (b) provides that the court may relieve a party or his or her legal representative from a judgment, dismissal, or order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (CCP § 473, subd. (b).) A party who seeks relief under CCP section 473, subdivision (b) on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) In other words, the discretionary relief of CCP section 473 only permits relief from attorney error fairly imputable to the client, i.e., mistakes anyone could have made. (Id. (legal assistant’s clerical mistake could have been made by anyone and thus was a ground for discretionary relief).) Vacating a dismissal can be based on mistakes made by an attorney or an attorney’s staff. (Id. at 259.)

In support of the Motion, Plaintiff provides evidence that Plaintiff never received notice of the nonappearance case review. (See Declaration of Dennis L. Kennelly (“Kennelly Decl.”).) Kennelly was retained by Plaintiff on November 12, 2021. (Kennelly Decl. ¶ 3.) Subsequently, Kennelly’s paralegal filed a Substitution of Attorney form with the Court on December 3, 2021. (Id.) Neither Kennelly nor his paralegal received notice that the Substitution of Attorney filing was rejected by the Court and Kennelly proceeded to work on discovery issues on the case and filed a stipulation to continue the trial until January 30, 2023. (Kennelly Decl. ¶ 6.) On May 2, Plaintiff’s former counsel contacted Kennelly to ask if the case had been dismissed, although the Court’s docket reflected that the case remained pending. (Kennelly Decl. ¶ 4.) On May 5, 2022, Kennelly’s paralegal learned that the Substitution of Attorney filing had not been accepted by the Court. (Kennelly Decl. ¶ 7.) During the process of refiling the Substitution of Attorney form, Kennelly learned that the case had been dismissed. (Kennelly Decl. ¶ 7.)

The Court finds that Plaintiff has shown that the circumstances that resulted in the case being dismissed were the result of mistake, error, or excusable neglect. For this reason and because it is unopposed, the Court GRANTS the Motion and orders that the dismissal be vacated and that Plaintiff’s Complaint be reinstated. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) A Case Management Conference will be held at the time of the hearing on this Motion to set trial and Final Status Conference dates.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court