Judge: Katherine Chilton, Case: 20STLC02682, Date: 2023-01-09 Tentative Ruling

Case Number: 20STLC02682     Hearing Date: January 9, 2023    Dept: 25

PROCEEDINGS:      MOTION TO VACATE DISMISSAL, REINSTATE COMPLAINT, AND CORRECT DEFENDANT’S NAME

MOVING PARTY:   Plaintiff Toby Lee Jones

RESP. PARTY:         None

MOTION TO VACATE DISMISSAL REINSTATE COMPLAINT, CORRECT NAME

(CCP § 473)

TENTATIVE RULING:

Plaintiff Toby Lee Jones’s Motion to Vacate Dismissal, Reinstate Complaint, and Correct Defendant Jee Song Kuriel’s Name is CONTINUED to FEBRUARY 27, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

SERVICE: 

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

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

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

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 March 18, 2020, Plaintiff Toby Lee Jones (“Plaintiff”) filed an action against Maya Kim Kuriel, Yaacov Kuriel, and Jee Kuriel (collectively “Defendants”) for negligence per se.  The action arose out of an alleged motor vehicle accident on April 16, 2019.  (Compl. ¶ 9.)

On February 22, 2021, Plaintiff filed a Request for Entry of Default/Judgment; default was entered as to all three Defendants.  (2-22-21 Request for Entry of Default/Judgment.)  On March 7, 2022, the Court held a hearing for Order to Show Cause Re: Entry of Default Judgment/Dismissal and why sanctions should not be imposed for Plaintiff’s failure to comply with California Rules of Court, rule 3.110(h).  Neither party appeared at the hearing, so the Court dismissed the Complaint without prejudice.  (3-7-22 Minute Order.)

On May 3, 2022, Plaintiff filed a Motion to Reinstate Complaint and Correct Defendant Jee Song Kuriel’s Name.  On August 1, 2022, the Court noted that Plaintiff had failed to serve and file a notice of motion and continued the hearing to September 6, 2022, to provide Plaintiff with additional time to file a notice.  (8-1-22 Minute Order.)  On September 6, 2022, pursuant to the Plaintiff’s request, the Court again continued the hearing to provide Plaintiff with additional time to file supplemental papers.  (9-6-22 Minute Order.)  On September 20, 2022, the Court noted that Plaintiff had not filed additional papers and accordingly, denied the Motion.  (9-20-22 Minute Order.)

            On December 9, 2022, Plaintiff filed the instant Motion to Vacate Dismissal, Reinstate Complaint, and Correct Defendant Jee Song Kuriel’s Name (“Motion”).

No opposition has been filed.

II.              Legal Standard

Discretionary relief is available under Code of Civil Procedure § 473(b) 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.”  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.)

Code of Civil Procedure § 473(a)(1) provides that, “the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.”

III.            Discussion

At a hearing on March 7, 2022, the Court noted that no appearances were entered for Plaintiff and dismissed the Complaint without prejudice.  (3-7-22 Minute Order.)

Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because of “Plaintiff’s counsel’s mistake, inadvertence, and excusable neglect.”  (Mot. p. 2.)  In this current declaration, Counsel for Plaintiff provides an explanation as to why he failed to appear at the hearing date on September 20, 2022 when the Court denied this same Motion because Plaintiff had not filed and served a notice of motion in compliance with Code of Civil Procedure § 1010 and California Rules of Court, rule 3.110(a).  (9-20-22 Minute Order; Osias Decl. ¶ 7.)  However, Counsel has not provided the Court with any explanation as to his failure to appear on March 7, 2022, the date on which the Complaint was dismissed.  (3-7-22 Minute Order.)

Furthermore, in his declaration, Counsel addresses errors made in seeking default against Defendants; however, these errors cannot be addressed by the Court unless the dismissal entered on March 7, 2022, is set aside, as the Complaint has been ordered dismissed.  (See Osias Decl.; Mot. pp. 3-4.)

Although the Court finds that the instant Motion is not timely, as it was not filed within six months of dismissal, “[e]ven where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order was void for lack of due process or resulted from extrinsic fraud or mistake.”  (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228; Bacon v. Bacon (1907) 150 Cal. 477, 491-92; Olivera v. Grace, 122 P.2d 564, 567-68; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147 (“There are four grounds which a court, utilizing its equity capacity may rely upon to provide relief from default.  Those areas are (1) void judgment, (2) extrinsic fraud, (3) constructive service, and (4) extrinsic mistake.”)  In limited civil cases, grounds for equitable relief also include “inadvertence or excusable neglect.”  (Code of Civ. Proc. § 86(b)(3).)

Thus, the Court may set aside dismissal and consequently correct Defendant’s name if it is presented with evidence regarding Plaintiff’s Counsel’s failure to appear at the March 7, 2022, hearing.

Additionally, the Court notes that until the instant Motion, Plaintiff has served Defendants at 2900 S. Sepulveda Blvd. #410, Los Angeles, CA 90064.  (7-10-20 Proof of Service by Substituted Service; 11-23-21 Proof of Service, 5-3-22 Motion p. 8.)  However, on December 9, 2022, Plaintiff filed Proof of Service indicating that Defendants were served at 1446 Tamarind Avenue, Apt. 208, Los Angeles, CA 90028.  (12-9-22 Minute Order.)  The Court requests additional information to confirm that Defendants have been properly served with the instant Motion.

Accordingly, the hearing on Plaintiff’s Motion is CONTINUED and Plaintiff is ordered to file supplemental papers as discussed herein.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Toby Lee Jones’s Motion to Vacate Dismissal, Reinstate Complaint, and Correct Defendant Jee Song Kuriel’s Name is CONTINUED to FEBRUARY 27, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Plaintiff is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

Moving party is ordered to give notice.