Judge: Jill Feeney, Case: 20STCV24970, Date: 2022-08-02 Tentative Ruling
Case Number: 20STCV24970 Hearing Date: August 2, 2022 Dept: 30
Department 30, Spring Street Courthouse
20STCV24970
August 2, 2022
Motion to Set Aside Dismissal filed by Plaintiff Rachal Hambrick
DECISION
The motion is granted.
A penalty in the amount of $750 is imposed on Plaintiff’s Counsel pursuant to Code of Civil Procedure 473(c)(1)(A).
Counsel for Plaintiff, Frank G. Hutting (State Bar No. 262778) is
ordered to pay sanctions in the amount of $750.00 to the
Superior Court of California, County of Los Angeles by 09/02/2022.
Failure to pay sanctions by the due date will result in this matter being forwarded to the
Collections Division at 111 N. Hill Street, Room 616, Los Angeles, CA 90012 for referral to a
private collections vendor without further notice or order of the Court
An OSC Re: Dismissal for Failure to File Proof of Service Pursuant to CCP 583.420(a)(1)/TSC is set for October 28, 2022 at 8:30 a.m.
Moving party to provide notice.
Background
This is an action for negligence and motor vehicle negligence arising from a car accident which took place in Encino, California in July 2018. Plaintiff Rachal Hambrick filed her complaint against Defendant Woosuk Baik on July 02, 2020. Plaintiff alleges Defendant made an unsafe and negligent left turn from a parking spot and collided with Plaintiff’s vehicle.
On December 16, 2021, the Court placed the FSC off calendar because there were no appearances by either party. There was also no proof that Defendant was ever served with the summons and complaint. Trial date was set on December 30, 2021.
On December 30, 2021, both parties failed to appear at trial. The Court dismissed the case without prejudice pursuant to CCP 581(b)(3).
On June 30, 2022, Plaintiff filed this motion to set aside dismissal.
Summary of Arguments
Moving Arguments
Plaintiff seeks a court order vacating the dismissal pursuant to Code Civ. Proc. section 473 subd. (b) on the grounds that Plaintiff’s counsel unintentionally failed to calendar the December 26, 2021 FSC.
Legal Standard
Per Code of Civil Procedure, section 473, subdivision (b), a court may relieve a party or his counsel from a dismissal against him because of his “mistake, inadvertence, or excusable neglect.” When a party seeks relief “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.” (Code Civ. Proc. section 473) And when such relief is available, “there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982, internal quotations omitted.)
Discussion
The Court dismissed Plaintiff’s action on December 30, 2021. The deadline to file a motion to set aside dismissal was June 30, 2022. Plaintiff filed the instant Motion on June 30, 2022, within the six-month deadline of the Code of Civ. Proc. section 473(b).
The Court dismissed Plaintiff’s action pursuant to Code Civ. Proc. sections 581, subd. (b)(3) because no party appeared for trial following 30 days’ notice of time and place of trial. Plaintiff’s counsel states that he failed to appear at the December 16, 2021 Final Status Conference and the December 30, 2021 trial because he unintentionally failed to calendar the FSC and trial dates. (Hutting Decl. ¶¶1-2.) Counsel also argues that the case was dismissed prematurely because Code Civ. Pro. section 583.420, subd. (a) precludes dismissal for delay in prosecution before the two-year discretionary timeframe. Counsel’s argument fails because the Court dismissed the action pursuant to Code. Civ. Pro. section 581, subd. (b)(3) for Plaintiff’s failure to appear at the December 30, 2021 trial, not for delay in prosecution. Nevertheless, the Court finds that Plaintiff’s absence at the December 30, 2021 trial was a result of Plaintiff’s counsel’s neglect and grants Plaintiff’s motion.
