Judge: Holly J. Fujie, Case: 22STCV27179, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV27179    Hearing Date: March 28, 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

            Plaintiffs’ complaint (the “Complaint”) alleges ten causes of action arising out of a landlord/tenant relationship.  On November 23, 2022, the Court dismissed the Complaint because Plaintiffs failed to file a declaration as to why the case should not be dismissed. 

On February 8, 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 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.) 

In support of the Motion, Plaintiffs’ counsel declares that he was not aware of the Court’s October 17, 2022 minute order that directed Plaintiffs to file a declaration as to why the case should not be dismissed.  (Declaration of Daniel Lavi (“Lavi Decl.”) ¶ 3.)  Plaintiffs’ counsel searched his office’s records and was unable to locate the notice sent by the Court.  (Id.)  

The Court finds that Plaintiffs have adequately shown that the dismissal of the Complaint was the result of their 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.)  The Court sets a Case Management Conference (“CMC”)to re-set trial for April 27, 2023 at 8:30 a.m.  The parties are ordered to file CMC Statements at least seven (7) Court days before the CMC.

            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 28th day of March 2023