Judge: Holly J. Fujie, Case: 24STCV01769, Date: 2024-10-10 Tentative Ruling

Case Number: 24STCV01769    Hearing Date: October 10, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff Leonardo Pinto Rojas

RESPONDING PARTY: Unopposed.

The Court has reviewed the moving papers. There is no opposition or reply.

BACKGROUND

On January 23, 2024, Plaintiff Leonardo Pinto Rojas (“Rojas”) filed a complaint (the “Complaint”) for this personal injury action against Defendants Davinci Motors, LLC Jessica Paredes Jimenez; and Zoya Makahswvaszhmud, alleging two causes of action: (1) motor vehicle; and (2) general negligence.

On May 24, 2024, the Court entered an Order of Dismissal of the Entire Action without prejudice (the “Dismissal”).

On June 20, 2024, Plaintiff Rojas filed the instant motion to vacate and set aside dismissal and to reinstate the action. Defendants have not opposed. There is no reply.

DISCUSSION

Legal Standard

California Code of Civil Procedure (CCP §) 473(b) states, in relevant part: “Notwithstanding any other requirements of this section, 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.”

“The mandatory relief provision acts as a ‘narrow exception to the discretionary relief provision for default judgments and dismissals. [Citation.]’ ” (Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723, quoting Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys.” (Id. at 723.) “[T]he Court of Appeal has stated the purpose was to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” (Id. at 723.)

“[A] mea culpa declaration by an attorney establishing that a default, default judgment, or dismissal was entered against his or her client as the result of attorney neglect deprives the trial court of discretion to deny relief, even without a showing that the neglect was excusable.” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

Analysis

Plaintiff moves for an order vacating and setting aside the dismissal entered against him on May 15, 2024, pursuant to CCP § 473(b) on the basis that the dismissal was due to the inadvertence, mistake, and/or excusable neglect of Plaintiff’s counsel. (Mot., pg. 1.) Plaintiff states that shortly after filing the underlying action, Plaintiff’s counsel experienced some “turnaround” and although the Notice of Non-Appearance Case Review dated March 18, 2024, was saved to the appropriate client file, no handling attorney had been assigned at that time. (Gomez Decl., ¶ 11.) Consequently, the Senior Associate Chair of Litigation, Dario C. Gomez, Esq., was not made aware of the notice, nor the deadline imposed by the Court of May 2, 2024, to file a declaration as to why the case should not be dismissed. (Id.)  Further, Plaintiff’s counsel mistakenly calendared only the Case Management Conference (CMC) set for May 24, 2024, and accordingly filed the CMC Statement on May 14, 2024, and a declaration re: order to show cause (OSC) on May 15, 2024.  (Id.)

Thus, the Court entered an Order of Dismissal of the Entire Action without prejudice on May 15, 2024.  (Id. at ¶ 12.)   However, Plaintiff’s counsel only became aware of the dismissal when attempting to set up remote appearance for the May 24, 2024 CMC and was unable to do so. (Id.) As soon as Plaintiff discovered the mistake or inadvertence, Plaintiff moved the Court for a request to set aside dismissal.  (Id., ¶ 13.)

Counsel Gomez declares that after his review of Plaintiff’s file, it became clear that the case was dismissed by and through his firm’s mistake, inadvertence, and/or excusable neglect. (Id., ¶ 14.) Moreover, Gomez asserts that Plaintiff will be unduly and irreparably prejudiced and harmed unless the Court sets aside the Dismissal because Plaintiff has incurred medical specials and has a meritorious claim of the personal injuries sustained from the motor vehicle collision. (Id., ¶ 15.) Thus, the interests of justice compel this Court to set aside the dismissal and reinstate the action. (Id.)

Here, the Court finds Plaintiff’s instant motion complies with the statutory requirements of the mandatory provision set forth in CCP § 473(b). The Dismissal was entered on May 15, 2024, Plaintiff learned of the Dismissal when attempting to set up remote appearance on May 24, 2024, and then Plaintiff filed the instant motion on June 20, 2024. Thus, Plaintiff has made this application for relief from Dismissal well within six months of its entry as required.

Next, the declaration of attorney fault provided by Counsel Gomez clearly establishes the Dismissal was a result of mistake and inadvertence by Plaintiff’s counsel and not by Plaintiff. Gomez further declares that due to Counsel’s failure to assign Plaintiff’s case a handling attorney at that time, counsel failed to respond to the Notice of Non-Appearance with a declaration, nor calendar the corresponding hearing. The Court finds this is exactly the kind of mistake contemplated by § 473(b) and Plaintiff supports this contention by including the relevant case law. (Mot., pgs. 4-5.)

Plaintiff sets forth that in In re Marriage of Hock and Gordon-Hock, (2000), 80 Cal.App.4th at p. 1444 the appellant lawyer failed to appear at the time and place set for trial in appellant's marital dissolution action due to a calendaring error, and the trial court entered a judgment in favor of appellee when the lawyer appears on the trial date. On appeal, the Court of Appeal reversed the trial court's denial of the motion, holding that the appellant satisfied the requirements to obtain relief under section 473 based on the appellant's lawyer's declaration of fault pursuant to section 473(b). The Hock court noted that the purpose of the attorney affidavit was to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits. The Court agrees that Hock is on point in this case and that Gomez’s Declaration, along with Plaintiff’s moving papers establish Plaintiff is the innocent party. Thus, not only will the interests of justice best be served by setting aside the underlying Dismissal but setting aside the Dismissal is also mandatory in this case because Plaintiff meets the requirements of the mandatory provision in CCP § 473(b). Given Defendant does not oppose the instant motion or challenge Plaintiff’s moving arguments, the Court finds Plaintiff has met the requirements and the set aside is mandatory. Thus, the Court sets aside and vacates the Dismissal and reinstates the underlying action.

Accordingly, the Court GRANTS Plaintiff’s Motion to Vacate/Set Aside.

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 9^th day of October 2024