Judge Holly J. Fujie, Case Number: 23STCV21443, Date: 2024-06-10 Tentative Ruling

The Court has considered the moving papers, Defendants’ counsel’s declaration in opposition to the motion and the reply papers.

On September 6, 2023, Plaintiff Ronda Jones (“Plaintiff”) filed this action against Defendants B&B Stables and its owners Mary and Robert Buell (collectively, “Defendants”) for (1) Violation of Civil Rights - Unruh Act, Civil Code § 51; (2) Violation of the California Business and Professions Code - §17200, et seq.; and (3) Intentional Infliction of Emotional Distress. Plaintiffs’ matter arises out of a business/patron relationship wherein Plaintiff was allegedly treated differently based on her race, and was evicted from a stable despite tendering full monthly payment of her stable rent at all times during her tenancy.

On December 15, 2023, the Court held a Non-Appearance Case Review. The court noted that Defendants were served on December 1, 2023, and ordered Plaintiff to file a request for default by January 8, 2024 if no answer was filed. (12/15/23 Minute Order.) On January 10, 2024, the court set a Non-Appearance Case Review re: Dismissal for Failure to Prosecute the Case for February 1, 2024. (1/10/24 Minute Order.) On February 1, 2024, the court dismissed Plaintiff’s Complaint without prejudice. (2/1/24 Minute Order.)

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).) The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any: (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment; or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (Id.) ¿The law favors a trial on the merits and courts therefore liberally construe section 473.¿ (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.)¿

Here, Plaintiff’s counsel contends that “due to unforeseen circumstances of Defendants and their Counsel, as well as miscalendaring by Plaintiffs’ office, there has unfortunately been a series of events that did not put the Court on notice of the Parties’ agreement that Defendants, and each of them, would file a[sic] responsive pleading no later than March 29, 2024.” (Motion, 3:12-15.) Plaintiff’s counsel’s secretary submitted a declaration that she made a mistake calendaring the court’s 12/15/23 and 1/10/24 Orders, causing Plaintiff’s counsel not to be notified. (See Feather Decl. generally.) Further, Plaintiffs’ counsel contends that the parties had agreed to extend Defendants’ deadline to file an Answer to March 29, 2024, due to one of the Defendants’ poor health. (Aman Decl., ¶¶ 4-7.) Prior to filing this motion and after the Court entered dismissal, on February 5, 2024, Plaintiff’s counsel filed a declaration stating the same. (2/5/24 Aman Decl., ¶¶ 10.)

Defense counsel opposes this motion and contends that Plaintiff’s counsel misrepresented the parties’ interactions. (Herrera Decl., ¶ 20.) Defense counsel argues that denying the motion would allow Plaintiff to name the Estate of Robert Buell as a defendant and give the parties the opportunity to more thoroughly discuss an informal resolution without facing a fast-approaching statutory deadline, as Defendants are amenable to settling the claims. (Id., ¶¶ 13, 20.)

The fact remains that the court entered dismissal of the Complaint because the parties failed to appear at the Non-Appearance Case Reviews on December 15, 2023 and January 10, 2024. Plaintiff’s counsel did not appear because her secretary failed to inform her of those hearings. Counsel’s secretary is relatively new to the firm and unfamiliar with the office’s calendaring system. (Feather Decl., ¶ 7.) Therefore, the dismissal “results” from an attorney’s “mistake” or “neglect” within the meaning of CCP § 473(b), and the dismissal must be vacated.

The motion is GRANTED. Because one of the Defendants, Robert Bueli, has apparently died, although the Court relieves Plaintiff from default, it does so with the condition that it allows thirty days for Plaintiff to file a motion to amend the complaint to name his Estate or other appropriate representative as a Defendant in place and stead of Robert Bueli. The remaining Defendants are allowed to wait to file their responsive pleadings until such time as an amended complaint has been filed, after which time they will have twenty days to respond to the amended complaint.

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