Judge: John J. Kralik, Case: 22BBCV00564, Date: 2024-09-06 Tentative Ruling
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Case Number: 22BBCV00564 Hearing Date: September 6, 2024 Dept: NCB
North
Central District
|
daimler
truck financial services usa llc, Plaintiff, v. sky benson, et al., Defendants. |
Case No.: 22BBCV00564 Hearing Date: September 6, 2024 [TENTATIVE]
order RE: Motion to vacate dismissal |
BACKGROUND
A.
Allegations
Plaintiff Daimler Truck Financial Services
USA, LLC (“Plaintiff”) alleges that on July 19, 2018, The Around The Clock
Freightliner Group, LLC (“Dealer”) and Defendants Miller Transportation LLC and
Sky Penson (“Defendants”) entered into a Conditional Sales Contract, under
which Dealer agreed to sell to Defendants a 2016 Freightliner Cascadia
125. Plaintiff alleges that the vehicle
was delivered to Defendants on July 19, 2018.
Plaintiff alleges that Defendants were required to make 54 payments of
$1,811.98 for the vehicle, commencing on September 2, 2018, but Defendants
failed to pay the amounts.
The complaint, filed May 2, 2023,
alleges causes of action for: (1) breach of contract; (2) money had and
received; and (3) breach of personal guaranty.
B.
Relevant Background and Motion on Calendar
On May 2, 2023,
the Court held an Order to Show Cause Re: Dismissal for Lack of
Prosecution. The Court noted that there
were no appearances by the parties. The
Court ordered the complaint filed by Plaintiff on August 4, 2022 to be
dismissed without prejudice.
On July 3, 2024, Plaintiff filed a motion
to vacate the dismissal.
The Court is not in receipt of an
opposition brief.
Plaintiff moves to set aside the dismissal, arguing
that it was not aware that a dismissal had been entered in the action, it did
not receive notice of the dismissal, and the Court continued to enter orders
even after the dismissal had been entered.
Plaintiff moves pursuant to the discretionary and mandatory prongs of
CCP § 473(b) and the inherent power of the Court.
The background of the procedural
posture of the case is relevant:
·
On August 4, 2022, Plaintiff filed the complaint.
·
On October 18, 2022, the Court held an OSC
re: Failure to File Proof of Service of the Summons and Complaint. Plaintiff’s counsel represented he was still
trying to serve Defendants and the OSC was continued to January 3, 2023.
·
On January 3, 2023, the Court held an OSC
re: Failure to File Proof of Service of the Summons and Complaint. Plaintiff’s counsel represented he was still
trying to serve Defendants and the OSC was continued to March 28, 2023.
·
On March 28, 2023, the Court held an OSC
re: Failure to File Proof of Service of the Summons and Complaint. No appearances were made. The Court set an OSC re: Dismissal for Lack
of Prosecution for May 2, 2023 and mailed notice to Plaintiff’s counsel.
·
On May 2, 2023, the Court held the OSC re:
Dismissal for Lack of Prosecution and no appearances were made. The Court dismissed the complaint without
prejudice and mailed notice to Plaintiff’s counsel.
·
On August 30, 2023, Plaintiff filed an
application for publication regarding Defendant Sky Benson.
·
On September 12, 2023, the Court signed
the Order for Publication.
·
On November 17, 2023, Plaintiff filed
Proof of Publication.
·
On February 26, 2024, Plaintiff submitted
a request for entry of default against Defendants and a request for dismissal
of Does 1-10. The requests were denied
on the basis that the Court dismissed the case on May 2, 2023. Notices of the rejections were served on
Plaintiff’s counsel by mail on February 26, 2024.
·
On July 3, 2024, Plaintiff filed this
motion.
Plaintiff argues
that the motion should be considered timely because the motion was filed within
6 months of the “actual” dismissal of the case.
Plaintiff argues that while the docket reflects that dismissal was entered
on May 2, 2023, the Court nevertheless signed the Order for Publication on September
12, 2023 and did not reject the application for publication on the basis that
the action had been dismissed. Plaintiff
argues that the first time it became aware of the dismissal was on February 26,
2024, when its request for default of Defendant and request for dismissal of
Does 1-10 were rejected on the basis that the action had been dismissed.
Plaintiff’s
counsel E. Richard McGuire states in his declaration that prior counsel Michael
Primack appeared at the “January 1” hearing and marked it as “concluded” such
that no further hearing was noted. (McGuire
Decl., ¶3.) (The Court notes that there
were no hearings conducted on January 1, a holiday, in this action and assumes
this was a typographical error that should have referred to January 3, 2023.) He states that Mr. Primack left the firm less
than a month after the hearing and that many files were incorrectly noted such
that follow-up hearings were not scheduled.
(Id., ¶4.) He states that
he did not receive any notice of the continued hearing date, notice for his
firm’s failure to appear at the March hearing, and notice of the dismissal of
the action. (Id., ¶¶5-7, 13-14.) He states that Plaintiff submitted the
application for publication on August 30, 2023, which the Court entered on
September 12, 2023; Plaintiff paid the fees and had the summons published; and
Plaintiff filed the proof of publication—none of these documents were rejected
on the basis that the action had been dismissed. (Id., ¶¶8-11.) He states it was only after the Court
rejected Plaintiff’s default package on February 26, 2024 that Plaintiff became
aware of the dismissal. (Id., ¶¶12,
15.)
Based on the date
of the entry of dismissal on May 2, 2023, the motion to vacate pursuant to CCP
§ 473(b) is untimely as the motion was filed over a year after the dismissal
was entered. Although Plaintiff argues
that the date of the dismissal should be February 26, 2024 (as opposed to May
2, 2023), the Court declines to “change” the dismissal date. Here, proper notice of the OSC hearings were
provided to Plaintiff’s counsel and Plaintiff’s counsel’s firm did not attend
the May 2, 2023 OSC hearing when the dismissal was entered.
As such, the
motion brought pursuant to CCP § 473(b) is denied on the basis that the motion
was not timely filed. (Thompson v. Vallembois (1963) 216 Cal. App. 2d 21, 24 [finding that
the Court lacked jurisdiction to grant relief under CCP § 473 after the
six-month period].)
Nevertheless, the
Court will grant relief pursuant to CCP § 473(d). Subsection (d) states: “The court may,
upon motion of the injured party, or its own motion, correct clerical mistakes
in its judgment or orders as entered, so as to conform to the judgment or order
directed, and may, on motion of either party after notice to the other party,
set aside any void judgment or order.” Here,
while the dismissal was entered on May 2, 2023, the Court accepted Plaintiff’s
submissions and entered an order in favor of Plaintiff regarding service by
publication and Plaintiff, relying on such orders continued to incur fees, pursued
service of the summons and complaint by publication, and requested default
against Defendants. It was not until
February 26, 2024 that the procedural postures of the case was correctly noted
by the court staff and Plaintiff’s 2024 submissions were rejected. This is an unusual circumstance and the Court
will set aside the dismissal to allow Plaintiff to pursue this action on its merits.
The motion to set aside the dismissal is granted
pursuant to CCP § 473(d).
CONCLUSION
AND ORDER
Plaintiff Daimler
Truck Financial Services USA, LLC’s motion to vacate the dismissal is granted. Plaintiff should resubmit the request for
entry of default and request for dismissal.
The Court sets a
Case Management Conference for January 2, 2025 at 8:30 a.m.
Plaintiff shall
provide notice of this order.
DATED: September 6, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court