Judge: Holly J. Fujie, Case: 21STCV16408, Date: 2023-04-14 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.

Case Number: 21STCV16408    Hearing Date: April 14, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiffs

            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).

BACKGROUND

            On July 20, 2022, the Court dismissed Plaintiffs’ first amended complaint (the “FAC”) against Defendant ZBS Law, LLP (“ZBS”) due to Plaintiffs’ failure to file a declaration as to why ZBS should not be dismissed. 

On January 19, 2023, Plaintiffs filed a motion to set aside the dismissal pursuant to CCP section 473, subdivision (b) (the “Motion”) on the grounds that their failure to file a declaration as to why the case should not be dismissed against ZBS was the result of mistake, inadvertence, or excusable neglect.

DISCUSSION

The court is empowered to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their 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.)  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.)  Doubts in applying section 473 are resolved in favor of the party seeking relief from default.  (Id. at 1478.) 

On July 5, 2022, the Court issued a minute order providing that Plaintiffs had 15 days to file a declaration stating why ZBS should not be dismissed.  The July 5, 2022 minute order was served on Plaintiffs’ former counsel, and not their current counsel, who substituted in on May 4, 2022.  (See Declaration of Steven Tamer (“Tamer Decl.”) ¶ 5.)  The July 20, 2022 minute order was likewise served on Plaintiffs’ former counsel.  Plaintiffs’ counsel therefore did not have notice that ZBS had been dismissed from the action.  (Tamer Decl. ¶ 12.) 

The Court finds that Plaintiffs have adequately shown that the dismissal of the Complaint was the result of mistake, inadvertence, 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 Plaintiffs’ FAC be reinstated against ZBS.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)   The Court will hold a Case Management Conference on May 9, 2023 at 8:30 a.m. in this department.

            Moving party is ordered to give notice of this ruling.

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.

        Dated this 14th day of April 2023