Judge: John J. Kralik, Case: 23BBCV01673, Date: 2024-09-06 Tentative Ruling
Case Number: 23BBCV01673 Hearing Date: September 6, 2024 Dept: NCB
North
Central District
|
louis
roa, Plaintiff, v. nothing but
class, llc, et al., Defendants. |
Case No.: 23BBCV01673 Hearing Date: September 6, 2024 [TENTATIVE]
order RE: Motion to set aside dismissal |
BACKGROUND
A.
Allegations
Plaintiff Louis Roa (“Plaintiff”) alleges
that on May 15, 2023, he was involved in a motor vehicle accident with
Defendant Jason Ellis (“Ellis”).
Plaintiff alleges that Ellis was operating the other vehicle and that
Ellis was employed by Defendant Nothing But Class, LLC (“NBC”), who entrusted
the vehicle to Ellis. Plaintiff alleges that Ellis was driving at an
unsafe speed and rear-ended Plaintiff’s vehicle.
The complaint, filed July 24, 2023,
alleges causes of action for: (1) motor vehicle; and (2) general negligence.
B.
Relevant Background and Motion on Calendar
On July 30, 2024,
the Court held a Case Management Conference and Order to Show Cause re:
Dismissal for Lack of Prosecution. The
Court noted that Plaintiff failed to appear, Plaintiff was present at the last
hearing on April 11, 2024 and had notice of the OSC, and that there was no
proof of service filed in the action. The
Court dismissed the complaint without prejudice.
On August 9, 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 based on
his counsel’s mistake, inadvertence, surprise, extended medical leave, or
excusable neglect.
Plaintiff provides the declaration
of counsel Costantinos Pavlakos. Mr.
Pavlakos states that the action was filed on July 24, 2023 and that he took
over the case on August 6, 2024 from the previous attorney, Victor Ujkic, who
was on an extended medical leave.
(Pavlakos Decl., ¶¶2-3.) He
states that no appearance was made on behalf of Plaintiff at the OSC on July
30, 2024 because, based on the internal calendaring records, Mr. Ujkic and his
team collectively failed to make sure the matter was properly calendared. (Id., ¶5.) He states that Mr. Ujkic has been on an
extended medical leave and did not have proper coverage measures in place for
upcoming hearings. (Id.) Counsel states that due to the collective and
joint inadvertence and neglect, Mr. Ujkic did not appear to the hearing. (Id.)
He states that the dismissal was entered at no fault of Plaintiff and
was solely due to Mr. Ujkic’s fault, neglect, and inadvertence as a result of
his medical leave. (Id.,
¶5.)
Based on the
declaration of Mr. Pavlakos, 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 is
granted.
CONCLUSION
AND ORDER
Plaintiff Louis
Roa’s motion to vacate the dismissal is granted.
The Court sets a
Case Management Conference for February 11, 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