Judge: John J. Kralik, Case: 24NNCV00435, Date: 2024-11-15 Tentative Ruling

Case Number: 24NNCV00435    Hearing Date: November 15, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Jing Guang Wu (“Plaintiff”) alleges that on March 26, 2022, he was walking his dog on Falling Leaf Avenue, approaching Garvey Avenue, in the City of Rosemead when he was suddenly and forcefully attacked by Defendant Jesus L. Duran’s (“Defendant”) dog, which suddenly ran out from 2639 Falling Leaf Ave.  Plaintiff alleges that Defendant’s dog attacked Plaintiff and his dog, bit Plaintiff’s arm without letting go, and caused Plaintiff to fall on the ground and suffer injuries.

            The complaint, filed March 22, 2204, alleges a single cause of action for general negligence.

B.     Relevant Background and Motion on Calendar

On September 23, 2024, the Court held an Order to Show Cause re: Dismissal.  The Court noted that Plaintiff failed to appear, Plaintiff was given proper notice of the hearing via the August 15, 2024 minute order, and that there was no proof of service filed in the action.  The Court dismissed the complaint without prejudice. 

On October 16, 2024, Plaintiff filed a motion to vacate the dismissal.  

The Court is not in receipt of an opposition brief. 

DISCUSSION

            Plaintiff moves to set aside the dismissal pursuant to CCP § 473(b).   

            Plaintiff provides the declaration of his former counsel James J. Vititoe, Esq.  Mr. Vititoe states that after this action was filed, he instructed his staff to make arrangements with a process server to serve the summons and complaint on Defendant.  (Vititoe Decl., ¶2.)  He states that he later learned that service had not been accomplished and that he “missed” calendaring the Case Management Conference that was set for August 15, 2024.  (Id.)  He states that it was his fault when he again failed to appear at the continued Case Management Conference held on September 23, 2024, at which time the case was dismissed without prejudice.  (Id., ¶3.)  Mr. Vititoe states that he has made arrangements to have the summons and complaint immediately served, he has substituted out of this matter, and Plaintiff’s current attorney of record, Alexander J. Petale, has substituted into this case. (Id., ¶4.)  (A substitution of attorney was filed on October 16, 2024—the same day as the filing of the motion.) 

Based on the declaration of Mr. Vititoe, the Court finds there is substantive merit to the motion based on the mandatory prong of CCP § 473(b) based on attorney fault.  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 Jing Guang Wu’s motion to vacate the dismissal is granted.  

The Court sets a Case Management Conference for May 15, 2025 at 8:30 a.m. 

Plaintiff shall provide notice of this order.

DATED: November 15, 2024                                                 ___________________________

                                                                                          John J. Kralik

                                                                                          Judge of the Superior Court