Judge: Jon R. Takasugi, Case: 20STCV07054, Date: 2022-08-24 Tentative Ruling

Case Number: 20STCV07054    Hearing Date: August 24, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s motion to set aside the entry of dismissal on 6/9/2022 is GRANTED.

            On 2/19/2020, Plaintiff Nadine Ellis filed suit against Zimmer, Inc. dba Zimmer Biomet, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and Iqbal Ansgar Anwar, M.D., alleging: (1) strict product liability design defect; (2) strict product liability; (3) negligence; (4) breach of implied warranty of merchantability; (5) professional negligence; (6) negligence; (7) respondeat superior; (8) negligent hiring; and (9) negligent use of defective product.

            On 6/9/2022, the Court granted attorney Majid Safaie’s motion to be relieved as counsel, and ordered the case dismissed at the OSC: Dismissal (Settlement).

            Now, Plaintiff moves to set aside dismissal.

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

“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.”

Discussion  

            Plaintiff argues that dismissal is warranted because her motion is timely, and because dismissal was entered as a result of her former counsel’s mistakes.

            More specifically, Plaintiff argues that she was never informed by Mr. Safaie that Kaiser had filed a motion for summary judgment, and Plaintiff should not be penalized for his failure to appear at the hearing. Second, Plaintiff submitted a declaration stating that she told Mr. Safaie that she “disagreed with each and every condition [the settlement agreement] contained” and that she told him that she would sign the paperwork. (Plaintiff Decl., ¶ 5.) Plaintiff states that she did not hear from Mr. Safaie “for a long time” and decided to “seek another attorney for a second opinion.”  (Plaintiff Decl., ¶ 5.) Plaintiff has since acquired new representation.

On a motion pursuant to Code of Civil Procedure section 473, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock (1985) 38 Cal.3d 22, 23 (Elston).) Moreover, “because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default (Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 470-471

            In light of Plaintiff’s evidence, the Court concludes that dismissal was entered due to excusable neglect. Given that Plaintiff’s motion is timely, the Court also finds that the grounds for relief are presented here.

            Based on the foregoing, Plaintiff’s motion to set aside dismissal is granted. In so doing, the Court emphasizes that this ruling does not restore the claims against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and Iqbal Ansgar Anwar, M.D which were dismissed pursuant to this Court’s summary judgment ruling on 4/21/2021. The only active Defendant is Zimmer, Inc.

            In reaching this conclusion, the Court notes the prejudice that results to Defendant Zimmer. Defendant Zimmer’s request re-open and re-set all relevant trial and pretrial deadlines, including Zimmer’s deadline to file dispositive motions such as a motion for summary judgment, is granted. Zimmer should not be denied an opportunity to defend its case on the merits based on Plaintiff’s and counsel’s conduct.

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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