Judge: John J. Kralik, Case: 23BBCV01085, Date: 2023-12-15 Tentative Ruling

Case Number: 23BBCV01085    Hearing Date: December 15, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Audrey Tatavosian, a minor by and through her guardian ad litem Ailin Ghokasian, and Ailin Ghokasian (“Plaintiffs”) allege that they are the surviving minor daughter and wife of Decedent Geghard Tatavosian (“Decedent”).  They allege that Decedent died on May 17, 2022.  Plaintiffs allege that Decedent was a patient of and consulted with Defendant Josephine Mee Devaraj D.O. (“Dr. Devaraj”) as his primary care physician, complaining of stomach pain, stomach bloating, and bloody stool.  Plaintiffs allege that Decedent died as a result of Defendant Providence Saint Joseph Medical Center (“Providence”) and Dr. Devaraj’s negligence and their failure to monitor, diagnose, and treat his condition at the standard of care.  They allege this led to Decedent’s death due to metastatic colon adenocarcinoma, septic shock, and urosepsis caquexia.

The complaint, filed on May 15, 2023, alleges a single cause of action for wrongful death. 

B.     Motion on Calendar

On October 17, 2023, Plaintiffs filed a motion to vacate the dismissal that was entered against them on October 11, 2023. 

The Court is not in receipt of an opposition brief.

DISCUSSION

            On October 11, 2023, the Court held a Case Management Conference and an OSC re: Failure to File Proof of Service of the Summons and Complaint.  The Court noted that there was no proof of service of the summons and complaint.  There were no appearances by the parties though Plaintiff’s counsel was informed of the October 11, 2023 hearing at the last hearing on July 27, 2023.  The Court dismissed the action without prejudice pursuant to CCP § 583.150 and Government Code, § 68608(b)(2). 

            Plaintiffs move to set aside the dismissal of the case pursuant to CCP § 473(b).  In support of the motion, they provide the declaration of their counsel, Jason Halpern.  (The declaration lacks pagination and paragraph numbers.)  Mr. Halpern states that the failure to respond was due to his inadvertence, surprise, mistake, or excusable neglect or lack of notice.  He states that he works in Long Beach and that internet service is not the most reliable in his building.  He states that he attempted to connect on numerous occasions to make a telephonic appearance at the CMC but was unsuccessful in doing so.  He states that on October 11, 2023, he drove an out-of-state visitor to the airport and from 7:30 a.m. tried to get through to the clerk of Department B, but was unsuccessful until 8:00 a.m. when he was told that a personal appearance was needed by 8:30 a.m.  He states that since he was in Long Beach, there was no way he could physically appear in Department B and that he contacted the clerk again around 8:15 a.m. and was told that the remote system might be down and that he should stay by the phone to receive a call from the court when his matter was called. Counsel states that he waited until 9:45 a.m. and called the court to inquire about the matter, but was advised that his matter had been called, there had been no response, and the case had been dismissed.  He states that as a result of the miscommunication, the action was dismissed and, thus, he is filing this motion.  He states that he filed the CMC statement, mailed the relevant service documents to the named defendants, and that he is ready, willing, and able to pursue this matter by personally serving Defendants. 

            Based on the declaration of Mr. Halpern, the Court finds there is substantive merit to the motion.  Further, the motion was timely brought within 6 months of the dismissal and the motion is unopposed.  Thus, the motion to vacate the dismissal pursuant to CCP § 473(b) is granted.  

CONCLUSION AND ORDER

Plaintiffs Audrey Tatavosian, a minor by and through her guardian ad litem Ailin Ghokasian, and Ailin Ghokasian’s motion to vacate the dismissal is granted. 

The Court sets a Case Management Conference and OSC re: Failure to File Proof of Service of Summons and Complaint on February 8, 2024 at 8:30 a.m. 

Plaintiffs shall give notice of this order. 

Warning regarding electronic appearances:  All software for remote or electronic appearances is subject to malfunction based on system weakness and human error, which can originate from any of the multiple parties participating each morning. The seamless operation of the Court’s electronic appearance software is dependent on numerous inconstant and fluctuating factors that may impact whether you, or other counsel or the Court itself can be heard in a particular case. Not all these factors are within the control of the courtroom staff. For example, at times, the system traps participants in electronic purgatories where they cannot be heard and where the courtroom staff is not aware of their presence. If you call the courtroom, please be respectful of the fact that a court hearing is going on, and that the courtroom staff is doing their best to use an imperfect system. If it is truly important to you to be heard, please show up to the courtroom in the normal way. Parking is free or reasonable in Burbank.

DATED: December 15, 2023                                                 ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court