Judge: Katherine Chilton, Case: 19STCV12706, Date: 2023-01-09 Tentative Ruling

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Case Number: 19STCV12706    Hearing Date: January 9, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Scott L. Bennett, in propria persona

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Scott L. Bennett’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on September 14, 2022, is hereby VACATED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of January 4, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 4, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 12, 2019, Plaintiff Scott L. Bennett (“Plaintiff”), in propria persona, filed an action against Defendants Luis Hernandez (“Luis”), Damien Hernandez, a minor (“Damien”), John Koutsoukos (“John”), and “Jane Doe” Koutsoukos (“Jane Doe”), (collectively “Defendants”), for breach of contract, common counts, fraud, and conversion.

            On September 9, 2019, the case was reclassified from civil unlimited to civil limited jurisdiction.  (9-9-19 Notice of Reclassification, Notice of Case Reassignment, Minute Order.)

            On September 21, 2020, Defendant John Koutsoukos filed an Answer to the Complaint.

            On September 23, 2020, based on Plaintiff’s request, the Court entered default against Defendant “Jane Doe” Koutsoukos.  (9-23-20 Request for Entry of Default/Judgment.)

            On August 10, 2021, the Court granted Plaintiff’s Motions to Compel Responses to Demand for Production of Documents and Special Interrogatories, filed on June 16, 2021.  (8-10-21 Minute Order.)  The Court ordered Defendant John to serve verified responses without objections within thirty (30) days’ notice of the Court order and to pay sanctions in the amount of $89.00.  (Ibid.)

            On January 12, 2022, the Court granted Plaintiff’s Ex Parte Application for Continuance of Trial and continued the trial date to March 15, 2022.  (1-12-22 Minute Order.)

            On March 15, 2022, on the date set for Non-Jury Trial, the Court noted that no appearances were entered for Plaintiff and dismissed the Complaint without prejudice.  (3-15-22 Minute Order.)

            On March 21, 2022, Plaintiff filed a Motion to Set Aside/Vacate Dismissal.  On April 18, 2022, the Court granted Plaintiff’s Motion and ordered the dismissal entered on March 15, 2022, as to the entire action, to be set aside and vacated.  (4-18-22 Minute Order.)  On the same day, the Court dismissed Defendants Luis and Damien without prejudice.  (Ibid.)

            On September 12, 2022, Defendant John filed a Motion to Dismiss Action for Lack of Enforceability; however, no hearing date was reserved by the Defendant.

            On September 14, 2022, on the date set for Non-Jury Trial, the Court noted that there were no appearances entered by Plaintiff and dismissed the Complaint without prejudice.  (9-14-22 Minute Order.)

            On October 28, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal.

            On November 30, 2022, the Court continued the hearing on the Motion to give Plaintiff an opportunity to file a corrected Notice of Motion containing the name and address of the courthouse where the hearing on the Motion will be held.  (11-30-22 Minute Order.)

            On December 30, 2022, Plaintiff filed a corrected Notice of Motion listing the Spring Street Courthouse address as location of the hearing.

            No opposition has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties when a case is dismissed.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

III.            Discussion

On September 14, 2022, on the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff and dismissed the Complaint without prejudice.  (9-14-22 Minute Order.)

            On October 28, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because he was late to the hearing “due to circumstances beyond his control.”  (Mot. p. 3.)  Specifically, Plaintiff states that his girlfriend had tested positive for COVID-19, so on the morning of the trial date and prior to heading to the courthouse, Plaintiff went to an urgent care to check whether he had contracted the virus.  (Bennett Decl. ¶ 5.)  The test result took additional time, so Plaintiff was late to the hearing and thus, the case was dismissed.  (Ibid.)  Plaintiff has attached a copy of the test results indicating that he went to the urgent care the morning of the hearing.  (Bennett Decl., Ex. A.)

On November 30, 2022, the Court noted that Plaintiff’s motion is timely, as it was filed within six months after the entry of dismissal on September 14, 2022.  (11-30-22 Minute Order.)  However, the Court continued the hearing on the Motion as the Notice did not indicate the address or name of the courthouse where the hearing on the Motion will take place.  (Ibid.)

            On December 30, 2022, Plaintiff filed a corrected Notice of Motion listing the Spring Street Courthouse address as location of the hearing.

            The Court finds that Plaintiff’s failure to appear can be attributed to excusable neglect and the Court has authority to set aside dismissal entered on September 14, 2022.  Accordingly, Plaintiff’s Motion is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Scott L. Bennett’s Motion to Set Aside/Vacate Dismissal is GRANTED.  Dismissal entered on September 14, 2022, is hereby VACATED.

            Trial is hereby set for March 1, 2023 at 8:30 a.m. in Department 25, Spring Street Courthouse.  The parties are ordered to comply with the Standing Order for Department 25 and to file their joint exhibit and witness lists at least ten (10) days before trial.

Moving party is to give notice.