Judge Holly J. Fujie, Case Number: 24STCV12424, Date: 2024-12-09 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.

MOVING PARTY: Gabrielle Jones, Daniela Cedillo, Mariangela Crovetto (collectively, “Plaintiffs”)

The Court has considered the moving papers. No opposition or reply has been filed.

This action arises from a motor vehicle collision. On May 16, 2024, Plaintiffs filed a complaint (“Complaint”) against Defendant Jordan Dobbin-Styles (“Defendant”) alleging a cause of action for general negligence in operating a motor vehicle.

On August 5, 2024, the Court issued a minute order noting that Defendant had not been served and that Plaintiff was to file a declaration by August 29, 2024 as to why the case should not be dismissed. No declaration was filed. On September 4, 2024, the Court dismissed the Complaint, without prejudice.

On October 23, 2024, Plaintiff filed the instant Motion for an Order to Set Aside Plaintiff’s Involuntary Dismissal of the Complaint (the “Motion). No opposition has been filed.

“A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse. [Citation.] The statute is remedial and should be liberally applied to carry out the policy of permitting trial on the merits, but the moving party has the burden of showing good cause. [Citations.]” (David v. Thayer (1980) 133 Cal.App.3d 892, 904-905.)

Section 473 subdivision (b) of the Code of Civil Procedure (“CCP”) provides for both discretionary and mandatory relief from a judgment, dismissal, and/or order or other proceeding taken against a party through his or her mistake, inadvertence, surprise, or excusable neglect. (CCP § 473, subd. (b) [mandatory relief more narrowly targeted to defaults, default judgments, and dismissals]; Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)

The provision of section 473, subdivision (b) provides that a court must vacate any resulting default judgment or dismissal entered against an attorney’s client whenever an application for relief is made no more than six months after entering of judgment, is in proper form, and is accompanied by the attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, unless the court finds that the fault or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. (CCP § 473, subd. (b).) The affidavit need only attest to the attorney’s mistake, inadvertence, surprise, or neglect in causing the default or default judgment—the reasons for it need not be explained. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439.) Attestation that one of these reasons existed is sufficient to obtain relief unless the trial court finds that the dismissal did not occur because of these reasons. (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660.) This is because “the purpose of the mandatory relief provision under section 473, subdivision (b) is achieved by focusing on who is to blame, not why.” (Martin Potts, supra, 244 Cal.App.4th at p. 439.)

Plaintiffs bring this motion on the ground that dismissal was entered based on mistake, inadvertence, surprise or excusable neglect of their counsel, Abraham Abginesaz (“Counsel”). This position is supported by Counsel’s declaration. Counsel explains that the case management conference date for the OSC re Proof of Service was inadvertently not put on his calendar. (Abginesaz Decl. ¶ 10.) Counsel further acknowledges not receiving the minute orders dated August 5 and September 4, 2024, due to relocating to a new office suite and failing to file a notice of change of address with the Court. (Abginesaz Decl. ¶ 9.)

The Court finds that the dismissal of the Complaint was the result of Plaintiff’s counsel’s mistake, inadvertence or excusable neglect. In addition, the Motion was timely filed within six months of the dismissal and is accompanied by Counsel’s sworn affidavit attesting to his mistake.

Thus, Plaintiff’s Motion is GRANTED. The Court orders that the dismissal be vacated, and that the Complaint be reinstated.

The Court notes, however, that no Proof of Service has yet been filed with the Court. The Court therefore sets an Order to Show Cause re Dismissal for Failure to File a Proof of Service for December 31, 2024 at 8:30 am. Plaintiff is ordered either to file a Proof of Service or file a Declaration explaining why service has not been effected at least seven Court days before that hearing. If Plaintiff has not served the Complaint by the time of the hearing, Plaintiff’s counsel is ordered to appear in person to explain to the Court the circumstances of this failure.

If Proof of Service is filed as ordered, a Case Management Conference will be held March 12, 2025 at 8:30 am.

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