Judge: Katherine Chilton, Case: 20STLC06568, Date: 2022-08-04 Tentative Ruling

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Case Number: 20STLC06568    Hearing Date: August 4, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Nicole Jackson

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Nicole Jackson’s Motion to Set Aside/Vacate Dismissal is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NO

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NO

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

OPPOSITION:          None filed as of August 2, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 2, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On August 5, 2020, Plaintiff Nicole Jackson (“Plaintiff”), in propria persona, filed an action against New Albertsons, Inc. (“Defendant”) for general negligence and intentional tort arising out of an alleged confrontation with Defendant’s store employee.

On February 2, 2022, the Court dismissed the Complaint without prejudice pursuant to Code of Civil Procedure § 581(b)(3) because neither party appeared for trial.

Interestingly, Plaintiff filed an identical complaint previously, on July 22, 2020, also alleging general negligence and intentional tort arising out of an alleged confrontation with Defendant’s store employee.  (Jackson v. New Albertson’s Inc., Case No. 20STLC06214).  That case also was dismissed for failure to appear at trial. (Id., Minute Order of 1/19/22).

On May 31, 2022, Plaintiff filed the instant Motion to Set Aside/Vacate Dismissal for the case filed on August 5, 2020.  No opposition was 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.)

III.            Discussion

Plaintiff seeks to set aside the dismissal entered on February 2, 2022, due to her “mistake, inadvertence, surprise and excusable neglect.”  (Mot. p. 5.)  First, Plaintiff states that she was unable to serve Defendant despite several attempts and requests that the Court set aside the dismissal and grant Plaintiff’s request to serve Defendant by posting.  (Jackson Decl. ¶¶ 2-5, 8; Exs. A-F, H.)  Plaintiff’s Request for Order to Serve Defendant by Posting is improperly attached as Exhibit H.  (Jackson Decl. p. 27 – Ex. H.)  Second, Plaintiff states that she “was also negatively impacted by the Covid pandemic, which led to the inability to fully prepare and appear on the trial date.” (Ibid. ¶ 6.)  Third, Plaintiff states that she was confused by the minute orders that state different trial dates because she had already received a dismissal minute order regarding trial on January 19, 2022.  (Ibid. at ¶¶ 7, 9, Exs. E, G.)  Plaintiff’s other case had been dismissed but not the instant one. 

Plaintiff contends that she has had difficulty serving Defendant from January to July 2021. The evidence, however, does not sync up with Plaintiff’s contentions. On September 14, 2021, Plaintiff filed a Proof of Service showing that Defendant was served on August 26, 2021, via personal delivery at its authorized agent’s address at 330 N. Brand Blvd. #700, Glendale, CA 91203.  (9-14-2021 Proof of Personal Service.)  There is no letter from CT Corporation regarding that service.  The letter attached from CT Corporation that service was not effectuated is dated January 22, 2021.  (Jackson Decl. p. 4, Ex. A.)  Plaintiff also states that she served a copy of the Complaint and instant Motion on Defendant and attached proof as Exhibit F; however, Exhibit F does not contain any proof that service was attempted.  (Jackson Decl. p. 21, Ex. F.)  The Court finds that, even if service has not been successful, Plaintiff has had several opportunities to serve Defendant since filing the instant action in August 2020.  Plaintiff’s failure to serve Defendant is not an excuse for failing to appear at trial.

Plaintiff also states that she was negatively impacted by the pandemic but does not provide any explanation regarding how it impacted her appearance at the trial date. 

Plaintiff’s excuse that she was confused about the dismissal in another identical case is unavailing. The Court admonishes Plaintiff for filing two identical cases in what may have been an attempt to “judge-shop” although the Court declines to find that to be the case.

 The Court finds Plaintiff’s reasons for missing the trial date and failing to serve Defendant insufficient to set aside the dismissal in the case.  The Court DENIES Plaintiff’s Motion.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Nicole Jackson’s Motion to Set Aside/Vacate Dismissal is DENIED.