Judge: Holly J. Fujie, Case: 22STCV10236, Date: 2023-03-01 Tentative Ruling

Case Number: 22STCV10236    Hearing Date: March 1, 2023    Dept: 56















      CASE NO.: 22STCV10236





Date: March 1, 2023

Time: 8:30 a.m.

Dept. 56



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).



            This action arises out of the purchase of an allegedly defective automobile.  Plaintiffs’ complaint (the “Complaint”) alleges: (1) violation of Song-Beverly Act (breach of express warranty); (2) violation of Song-Beverly Act (breach of implied warranty); and (3) negligent repair. 



On December 20, 2022, Plaintiffs filed a stipulation (the “Stipulation”) providing that Plaintiffs and Defendants had entered into a settlement agreement (the “Settlement”) and that pursuant to the Settlement, Plaintiffs were entitled to recover attorney’s fees and costs.  The Court entered the Stipulation on December 22, 2022.  The Court issued a minute order on December 22, 2022 scheduling a non-appearance case review regarding the dismissal of the Complaint after the Settlement on January 30, 2023 and ordering Plaintiffs, in the event that they did not dismiss the Complaint before the case review, to file a declaration as to why the case should not be dismissed, which was to be filed by January 25, 2023.  Plaintiffs neither dismissed the Complaint nor filed a declaration as to why the case should not be dismissed before the January 30, 2023 case review; as a result, the Court dismissed the Complaint without prejudice on January 30, 2023.


On February 3, 2023, Plaintiffs filed a motion to set aside the dismissal pursuant to CCP section 473, subd. (b) (the “Motion”) on the grounds that their failure to file a declaration as to why the case should not be dismissed was the result of mistake, inadvertence, or excusable neglect. [1]



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.) 


            In support of the Motion, Plaintiffs provide evidence that their attorney failed to file a declaration with facts to inform the Court why the Complaint should not be dismissed as the result of a calendaring/clerical error made by a litigation assistant.  (See Declaration of Armando Lopez (“Lopez Decl.”) ¶¶ 9-10, Exhibit A.)  As a result of the error, Plaintiffs’ attorney was unaware that the Court ordered that a declaration be filed.  (See id.)  Plaintiffs’ counsel attempted to remotely appear at the January 30, 2023 case review but was unable to connect.  (Lopez Decl. ¶ 11.)  After calling the Court, counsel learned that the Complaint was going to be dismissed.  (Id.)  Plaintiffs’ counsel also declares that the terms of the Settlement have not yet been performed.  (See Lopez Decl. ¶ 12.) 


The Court finds that Plaintiffs have shown that the dismissal of the Complaint was the result of counsel’s 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’ Complaint be reinstated.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) 



            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 1st day of March 2023





Hon. Holly J. Fujie

Judge of the Superior Court


[1] On February 15, 2023, Defendants filed a Notice of Non-opposition to the Motion.