Judge Joel R Wohlfeil, Case Number: 37-2019-00063383-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2019-00063383-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 30, 2024

05/03/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Motion to Dismiss 37-2019-00063383-CU-PO-CTL SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Vacate, 02/26/2024

The Motion (ROA # 196) of Plaintiff ROBERTO SOLIS RODRIGUEZ ('Plaintiff') for relief pursuant to Code of Civil Procedure section 473(b) from the August 25, 2023 order, is DENIED.

This Court's previous order set aside the judgment of dismissal. See ROA #s 175 and 189.

This Motion, in turn, seeks to set aside and vacate the August 25, 2023 ruling granting an order for terminating sanctions. The August 25th order formed the basis for subsequent judgment of dismissal.

Specifically, the August 25th order was stayed for 60 days so that Plaintiff could serve the delinquent discovery responses without objections. This action was dismissed after the expiration of this 60-day period. Although the previous order set aside the judgment of dismissal, it did not address the August 25th order, and this Motion followed as a result.

'The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. 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 .... 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 court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties ....' Code Civ. Proc. 473(b).

This Motion attempts to invoke the mandatory relief provision of section 473(b) based on an attorney declaration of fault. However, for purposes of the mandatory provision of section 473(b), a 'default' means only a defendant's failure to answer a complaint, and a 'default judgment' means only a judgment entered after the defendant has failed to answer and the defendant's default has been entered. Vandermoon v. Sanwong (2006) 142 Cal. App. 4th 315, 321. It does not apply to discovery orders such as the August 25th order at issue on this Motion.

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3095566 CASE NUMBER: CASE TITLE: SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] 37-2019-00063383-CU-PO-CTL With respect to discretionary relief, a party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to their client and may not be offered by the latter as a basis for relief. Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258.

In determining whether the attorney's mistake or inadvertence was excusable, the Court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. Id. In other words, the discretionary relief provision of section 473 only permits relief from attorney error fairly imputable to the client, i.e., mistakes anyone could have made. Id. Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. Id. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice. Id. The declaration of counsel states in substantive part as follows: '3. My office has remedied the discovery issues and sent out fully verified discovery responses without objections.

4. The failure of my office to timely serve discovery responses was due to the mistake, surprise, inadvertence, or neglect of myself.

5. I as well as my office staff lost communication with Plaintiff Roberto Solis Rodriguez.

6. I made a mistake by failing to proactively look for the plaintiff and failing to hire a private investigator earlier in this matter.

7. This was also negligent on my behalf and I take responsibility for this error in judgment.

8. It was not until on or about September 27, 2023, that my office was finally able to reach the Plaintiff via a telephone call.

9. Plaintiff Roberto Solis Rodriguez worked with my office staff to get the discovery responses and verifications done.

10. Initially, Plaintiff's responses contained responses with objections which was a mistake by Plaintiff's counsel.

11. Plaintiff's counsel also made a mistake in believing that he simply needed to find Plaintiff pursuant to the September 12, 2023 Order.

12. Plaintiff Roberto Solis Rodriguez has expressed that he would like to pursue his suit.

13. The failure of Plaintiff, Roberto Solis Rodriguez, to serve his responses to Defendants' Request for discovery responses and verifications requested was due to my mistake, surprise, inadvertence, or neglect.' This declaration of counsel does not explain why counsel never informed defense counsel or this Court of the inability to communicate with the client. Also, counsel does not explain why counsel did not at least serve incomplete responses in order to preserve objections. Also, counsel does not explain why counsel did not file any opposition to the initial motion to compel or appear at the hearing on May 12, 2023. Counsel does not explain the delay after reestablishing contact with the client.

This failure to participate in written discovery originates in Plaintiff's failure to communicate with his attorney. There is no declaration from Plaintiff explaining the reasons why Plaintiff did not maintain contact with counsel, provide counsel with updated contact information or initially work with counsel to litigate this action.

Given this incomplete record, the Court is unable to conclude that the failure to serve timely responses to discovery resulted from Plaintiff's mistake, inadvertence, surprise or excusable neglect. The Motion is Calendar No.: Event ID: TENTATIVE RULINGS

3095566 CASE NUMBER: CASE TITLE: SOLIS RODRIGUEZ VS PLAZA HOTEL [IMAGED] 37-2019-00063383-CU-PO-CTL denied on this basis.

Plaintiff has now had the opportunity to seek to set aside of order imposing terminating sanctions. As this order will not be set aside, it is now appropriate for Defendants to re-submit a judgment of dismissal.

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3095566