Judge Holly J. Fujie, Case Number: 24STCV03241, Date: 2024-10-30 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving and opposition papers. No reply has been filed. Any reply was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

On February 7, 2024, Plaintiff filed a complaint (“Complaint”) alleging a tort claim against Defendant.

On April 16, 2024, the Court issued a minute order that scheduled a non-appearance case review for June 4, 2024 regarding dismissal for Plaintiff’s failure to file proof of service. On June 4, 2024, the Court issued another minute order noting that no proof of service was filed, continuing the matter one more time, warning that the case will be dismissed if Plaintiff does not file a declaration by June 12, 2024. Plaintiff did not thereafter file a proof of service, and after holding the non-appearance case review on June 14, 2024, the Court dismissed the entire action without prejudice.

On June 25, 2024, Plaintiff filed a Motion to Vacate Dismissal Based on Excusable Neglect and/or Attorney Affidavit of Neglect (the “Motion”). Defendant filed a late opposition on October 17, 2024. The Court, in its discretion, considers the late-filed opposition. No reply has been filed.

Defendant requests judicial notice of orders issued by the Court in this case. Although unnecessary since the same are already part of the record of this case, the request is nonetheless GRANTED.

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).) Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (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

In support of the Motion, Plaintiff’s counsel declares that on March 3, 2024, he and his son were injured in a fire at home, causing significant distress to him and disruption to his work. Additionally, he works out of a home office, and the fire destroyed many of his files, caused him to relocate, and disrupted the receipt of his mail. Plaintiff’s counsel further states that he nonetheless served the Complaint on or about May 1, 2024, but that he neglected to file the proof of service. (Declaration of Saied Kashani, ¶¶ 2-3.)

The Court notes that on May 29, 2024, Defendant’s counsel filed a declaration regarding an extension to file a responsive pleading, specifically stating that “Plaintiff served Defendant LA CANADA UNIFIED SCHOOL DISTRICT on Friday, April 26, 2024, with a Summons and Complaint.” (Declaration of Barbara Rohr, ¶ 4.) The Court finds that in light of the aforementioned extenuating circumstances affecting Plaintiff’s counsel, the fact that the Complaint was actually served, and the policy of liberally construing CCP section 473 in favor of the party seeking relief, Plaintiff’s failure to file a proof of service or a declaration explaining why the case should not be dismissed constitutes a mistake, inadvertence, surprise, or excusable neglect.

Accordingly, the Court GRANTS the Motion and orders that the dismissal be vacated, and that the Complaint be reinstated. A responsive pleading to the Complaint is due 30 (thirty) days from the date of this Order. The Court will hold a case management conference on November 13, 2023 at 8:30 a.m. in this department.

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