Judge: Katherine Chilton, Case: 19STLC05782, Date: 2022-08-03 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 25 at the Spring Street Courthouse up until the morning of the motion hearing. The e-mail address is SSCdept25@lacourt.org. The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.
Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.  **Please note we no longer use CourtCall**

Case Number: 19STLC05782    Hearing Date: August 3, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Westlake Services

RESP. PARTY:         Ronald McDonald

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Westlake Services’ Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on January 31, 2022, is HEREBY VACATED.  Plaintiff’s former counsel is ordered to pay a PENALTY of $500 to Defendant within ten (10) days’ notice of this order.

SERVICE: 

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

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

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

OPPOSITION:          Filed on July 21, 2022.                                    [   ] Late                      [   ] None

REPLY:                     Filed on July 27, 2022.                                    [   ] Late                      [   ] None

ANALYSIS:

I.                Background

On June 18, 2019, Plaintiff Westlake Services, LLC, dba Westlake Financial Services (“Plaintiff”) filed an action against Ronald McDonald (“Defendant”) for breach of contract.

On July 22, 2021, Defendant filed a Motion to Transfer Action to San Bernardino County Superior Court.  The Court granted Defendant’s Motion and ordered Plaintiff to pay the transfer fee within five (5) days of notice of the order.  (12-1-21 Minute Order.)  Plaintiff failed to pay the transfer fee, so the Court set a hearing for Order to Show Cause Re: Plaintiff’s Failure to Pay Transfer Fees on January 31, 2022.  (12-30-21 Minute Order.)  On January 31, 2022, at 9:20 a.m. Plaintiff’s Counsel submitted a declaration in response to the Order to Show Cause hearing, stating that the payment would be made by the end of the same day.  (1-31-22 Minassian Decl. ¶ 4.)  At 9:30 a.m. on January 31, the Court dismissed the case without prejudice for Plaintiff’s failure to pay the transfer fee prior to the hearing.  (1-31-22 Minute Order.)

On July 5, 2022, Plaintiff filed Judicial Council form MC-050 for Substitution of Attorney.

On July 6, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal.  Defendant filed an Opposition to Plaintiff’s Motion on July 21, 2022, and Plaintiff filed a Reply on July 27, 2022.

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

Plaintiff seeks to set aside the dismissal entered on January 31, 2022, due to prior counsel’s “mistake, inadvertence, and excusable neglect.”  (Mot. p. 3.)  Until the date of dismissal, Plaintiff was represented by in-house counsel.  (Minassian Decl. ¶ 2.)  Due to the COVID-19 pandemic, Plaintiff’s internal legal team experienced significant staffing issues that affected its case management system.  (Ibid. at ¶ 3.)  As a result, Defendant’s Motion to Transfer Venue and its filing deadlines were not properly calendared and “Plaintiff failed to timely respond or appear.”  (Ibid. at ¶ 4.)  Subsequently, Plaintiff’s legal assistant processed the mail containing the Court order on Defendant’s Motion to Transfer and failed to pay the ordered transfer fees.  (Ibid. at ¶ 6.)  On December 30, 2021, the Court again ordered that Plaintiff pay the transfer fees, at least five days prior to the hearing on January 31, 2022.  (Ibid. at ¶ 7; 12-30-21 Minute Order.)  Plaintiff’s legal assistant, who was responsible for paying the fee, once again failed to do so.  (Ibid. at ¶ 7.)  Plaintiff’s prior counsel takes responsibility for the mistake.  (Ibid. at ¶ 8.)

Defendant opposes Plaintiff’s Motion on several grounds.  First, Defendant argues that the Court should consider prejudice to the parties when ruling on the Motion, citing to Magpali v. Farmers Group, Inc. (1990) 48 Cal. App. 4th 471.  Defendant states that it will suffer prejudice if the Court vacates the dismissal since the case was filed over three years ago and the availability of documents and Defendant’s memory may be impacted.  (Oppos. p. 5.)  However, nothing in § 473(b) mandates the Court to consider prejudice to the opposing party when ruling on a motion to set aside dismissal.  (Code of Civ. Proc. § 473(b).)  In Magpali, the Court denied the party’s request to amend a complaint, not a motion to set aside dismissal, based on a finding of prejudice.  (48 Cal. App. 4th 471; Oppos. p. 3.)  Finally, in its Reply, Plaintiff contends that Defendant has a pending complaint against Plaintiff relating to the same lawsuit which includes the same set of facts and documents.  (Reply p. 4.)

Second, Defendant argues that Plaintiff is “blaming a legal assistant, not the mistake, inadvertence, or excusable neglect of Attorney Minassian” who does not admit to being at fault and therefore, Plaintiff does not comply with the requirements of Code of Civil Procedure § 473(b) for mandatory relief.  (Oppos. p. 3.)  Defendant cites to Cisneros v. Vueve, in which the Court denied § 473(b) relief because the attorney was not representing the clients when default was entered.  ((1995), 37 Cal.App.4th 906, 912.)  Here, Counsel Minassian was representing Plaintiff when dismissal was entered.  (Minassian Decl. ¶ 2; Reply p. 2.)  Furthermore, in this case, Plaintiff’s counsel explains that the mistake arose due to the legal assistant’s actions but states that she is “ultimately responsible for ensuring deadlines are met.”  (Minassian Dec. ¶ 7; Reply p. 2.)

Defendant states that there have been several delays in the case and “Plaintiff has consistently ignored the formalities of the Court, ignored Court orders, and ignored this case.”  (Oppos. p. 3.)  It argues that the Motion is untimely because it was filed “over five months” after the dismissal and that the delay was unreasonable.  (Ibid. at pp. 3-4.)  The Court disagrees.  The Motion complies with Code of Civil Procedure § 473(b) requirements and the delay was reasonable because it was filed one day after Plaintiff filed a Substitution of Attorney with the Court on July 5, 2022.

Defendant also states that pursuant to § 473(b), Defendant would be entitled to compensatory legal fees due to the attorney’s mistake, inadvertence, or neglect.  (Ibid. at p. 4.)  Plaintiff argues that these fees should be reasonable and limited to fees incurred in relation to the instant Motion.  (Reply pp. 4-5.)  Plaintiff notes that Defendant has not made a specific request for fees.  (Ibid.)  When the court grants a motion to set aside dismissal, it may impose a monetary penalty on the offending attorney or party, “no greater than one thousand dollars,” direct the attorney or party to pay this sum to the State Bar Client Security Fund, or grant other relief as appropriate.  (Code of Civ. Proc. § 473(b).)  Here, a penalty of $500 would be appropriate to compensate Defendant for attorney’s fees associated with filing the Opposition to the Motion and for appearance at the hearing.

The Court finds that Plaintiff’s Motion is timely and was filed with former counsel’s declaration attesting to counsel’s fault in failing to pay the transfer fees ordered by the Court.  Plaintiff’s Motion to Set Aside/Vacate Dismissal is GRANTED.  The Court also imposes a PENALTY of $500 on Plaintiff’s former counsel to be paid to the Defendant.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Westlake Services’ Motion to Set Aside/Vacate Dismissal is GRANTED.  The dismissal entered on January 31, 2022, is HEREBY VACATED.  Plaintiff’s former counsel is ordered to pay a PENALTY of $500 to Defendant within 10 days notice of this order.

Moving party is ordered to give notice.