Judge: Joseph Lipner, Case: 24STCV10694, Date: 2025-05-27 Tentative Ruling

Case Number: 24STCV10694    Hearing Date: May 27, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Melanie Middien as Successor Trustee of the Middien-Rader Family Trust (Plaintiff) moves for an order setting aside the dismissal the Court entered on October 14, 2024, and amending her Request for Dismissal (Form CIV-110) to state that the dismissal is entered “without prejudice” instead of “with prejudice.”

The Court tentatively DENIES the motion but requests argument from both parties as to the cases Plaintiff cites as to the “inherent equitable authority to grant relief in cases involving excusable neglect or hardship.”  (Plaintiff Reply at 4:3-13.)  Do those cases or any others grant the Court the right to set aside the dismissal under the circumstances of the case outside the six month deadline?  

Background

            Plaintiff alleges the following, among other things. The defendants represented Plaintiff’s late husband (Matthew J. Rader) in their divorce and domestic violence case. After her husband died and the case abated, the defendants put $500,000 worth of liens across three properties. One of the law firm defendants also pursued the husband’s debt in family, probate, and civil cases. Even though the firm won a judicial foreclosure in the civil case, it is now pursuing an illegal non-judicial foreclosure. In pursuit of the non-judicial foreclosure, Defendant John J. Gilligan recorded misleading, fraudulent, and void or voidable documents in the County Recorder’s Office. In addition, Plaintiff is the rightful owner of the properties located at 2325 Highbury #64, Los Angeles, CA 90032, and 11622 Peach Street, Lynwood, CA 90262. Yet defendants recorded and served false and defective notices of default and election to sell against those properties. As a result of the defendants’ actions, Plaintiff has, among other damages, incurred fees and costs for removing cloud on title.

On April 30, 2024, filed the operative Complaint against Defendants John J. Gilligan (Gilligan), Gilligan, Frisco & Trutanich, LLP (GFT), Brandmeyer, Gilligan & Gockstader, LLP (BGD), First American Title, Michael Sarris (Sarris), Janine Frisco (Frisco) and Kristin Trutanich (Trutanich).

On October 11, 2024, Plaintiff filed a request to dismiss the entire action with prejudice. The Court entered the dismissal on October 14, 2024.

            On April 16, 2025, Plaintiff filed this motion to set aside the dismissal pursuant to Code of Civil Procedure section 437, subdivision (b) (Section 473(b)). The motion contains a proof of service indicating that Plaintiff served the moving papers on April 14, 2025.

            On May 13, 2025, Defendants GFT, Gilligan, Frisco, Trutanich, and Sarris filed their opposition to the motion. Specially appearing defendant First American Title also filed an opposition.

            On May 19, 2025, Plaintiff filed a “Reply to Opposition and Request to Strike” in response to the oppositions.

Legal Standard

Under Section 473(b), a court may “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 relief under section 473(b) “shall be [1] accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and [2] shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b) [emphasis added].)

An application to set aside a dismissal is timely “made” within the meaning of Section 473(b) only when it is served and filed within six months of the dismissal. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341–342 [holding that although the appellant filed her Section 473(b) motion within six months of the proceedings at issue in that case, the motion was still untimely because she failed to also serve her motion within six months of those proceedings].)

The “six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928.)

Discussion

As an initial matter, Plaintiff argues in her reply that the oppositions are untimely because the opposing defendants submitted their papers after 5:00 p.m. on May 13, 2025.

The oppositions were due on May 13, 2025, nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days …”].)  Code of Civil Procedure section 1010.6, subdivision (e)(3) states that “[a]ny document received electronically by the court between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed filed on that court day.”

Here, the defendants electronically filed their oppositions on Tuesday, May 13, 2025, a court day, before midnight.  Therefore, the oppositions are timely.

The Court denies Plaintiff’s motion because it is not timely.  A motion for relief under Section 473(b) must be filed and served within six months of the proceeding at issue. Here, Plaintiff filed the motion on April 16, 2025, more than six months after that dismissal. Therefore, the motion is untimely, and the Court does not have the jurisdiction to grant her relief under Section 473(b).  ( Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341–342.)

The Court will hear argument as to whether case law cited by Plaintiff in her reply grants the Court any leeway in granting Plaintiff relief.  Moreover, if Plaintiff knows of any reason that she believes the motion is timely, she may bring it to the Court’s attention.