Judge: Holly J. Fujie, Case: 23STCV15959, Date: 2024-03-28 Tentative Ruling

Case Number: 23STCV15959    Hearing Date: March 28, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff Blossom Brown

RESPONDING PARTY: None

            The Court has considered the moving papers. No opposition has been received.

BACKGROUND

             Plaintiff Blossom Brown (“Plaintiff”) initiated this action against Defendants Los Angeles LGBT Center, Luis Felix, and Jeffrey Rodriguez (collectively, “Defendants”), alleging the following causes of action: (1) discrimination in violation of Government Code §§ 12940, et seq.; (2) harassment in violation of Government Code §§ 12940, et seq.; (3) retaliation in violation of Government Code §§ 12940, et seq.; (4) failure to prevent discrimination, harassment and retaliation in violation of Government Code § 12940(k); (5) failure to provide reasonable accommodations in violations of Government Code §§ 12940, et seq.; (6) failure to engage in a good faith interactive process in violation of Government Code §§ 12940, et seq.; (7) retaliation (Labor Code §§ 1102.5, 1102.6); and (8) wrongful termination.

            On August 30, 2023, the Court ordered Plaintiff to file proof of service as to the complaint or to submit a declaration by October 12, 2023, explaining why the case should not be dismissed. On October 17, 2023, due to Plaintiff’s failure to comply with the Court’s August 30, 2023 Order, the Court dismissed Plaintiff’s complaint without prejudice for lack of prosecution.

            On November 16, 2023, Plaintiff filed the instant motion to set aside the dismissal entered on October 17, 2023. No opposition has been submitted.

DISCUSSION

            A trial court has broad discretion to vacate a judgment, dismissal, default judgment, or entry of default that preceded it. (Code Civ. Proc. § 473.) However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) A party may seek discretionary or mandatory relief from default under Code of Civil Procedure § 473(b) on grounds of “mistake, inadvertence, surprise or excusable neglect.” Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary.  (Id.)

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)

            Here, Plaintiff contends that the dismissal entered on October 17, 2023 should be set aside because the failure to appear and to abide by the Court’s August 30, 2023 Order was due to her attorney’s mistake. In support of this contention, Plaintiff has submitted the declaration of her counsel, Stephen J. Duron. Within his declaration, he states that his firm had changed its mailing system in July 2023, but because of a flaw within this new system, the mail received for this case was improperly filed. (Duron Decl. ¶ 3.) Thus, no attorney or paralegal had seen the Court’s Minute Orders dated July 11, 2023 and August 30, 2023. (Ibid.) The error in the new mailing system was not fixed until October 20, 2023, and at this point, Plaintiff’s attorney became aware that this action had been dismissed after having received the Court’s October 17, 2023 Minute Order. (Id. at ¶ 4.) Therefore, Counsel Duron claims that it was due to mistake and excusable neglect that his firm did not properly calendar the pertinent deadlines set by the Court. (Id. at ¶ 8.)

            Under the circumstances, the Court finds that Plaintiff’s argument has merit.  Courts have found excusable neglect where the attorneys relied on a member of their staff “to perform certain tasks, including calendaring deadlines, and the staff member errs.”   (Renteria v. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 911; see also Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359.) Moreover, under the mandatory provision of Section 473(b), the attorney’s neglect does not need to be excusable.  (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.) Therefore, the Court finds that Plaintiff is entitled to relief under the mandatory provision of Code of Civil Procedure § 473(b).

Accordingly, because Plaintiff’s counsel has admitted fault for his failure to abide by the Court’s August 30, 2023 Order, the Court grants the instant motion pursuant to Code of Civil Procedure § 473(b).

            Plaintiff’s Motion to Set Aside Dismissal of Action is GRANTED.

Moving Party is ordered to give notice of this ruling.           

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 2024