Judge: Katherine Chilton, Case: 21NWLC40219, Date: 2023-03-27 Tentative Ruling

Case Number: 21NWLC40219    Hearing Date: March 27, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff West Central Produce, Inc.

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

The hearing on Plaintiff West Central Produce, Inc.’s Motion to Vacate Dismissal is CONTINUED to APRIL 27, 2023 at 10:00 a.m. in DEPARTMENT 25, 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.  Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NONE

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 NONE

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NONE

OPPOSITION:          None filed as of March 22, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 22, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On November 4, 2021, Plaintiff West Central Produce, Inc. (“Plaintiff”), filed an action against Defendants Nature’s Natural Health Food Market & Café, Inc. (“Nature’s”) and William De La Campa (“De La Campa”) (collectively “Defendants”).

On July 12, 2022, based on Plaintiff’s request, the Court entered default against Defendants Nature’s and De La Campa.  (7-12-22 Request for Default.)

On November 10, 2022, at an Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (11-10-22 Minute Order.)

On November 18, 2022, the Court denied Plaintiff’s Ex Parte Application to Set Aside Dismissal.  (11-18-22 Minute Order.)  The Court also determined that the case is not a “collection Hub” matter and transferred the case to Department 1 for reassignment.  (11-18-22 Minute Order.)  On December 1, 2022, the case was assigned to Judge Katherine Chilton in Department 25 at the Spring Street Courthouse.  (12-1-22 Minute Order.)

On December 13, 2022, Plaintiff filed the instant Motion for Order to Set Aside Dismissal (“Motion”).  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 November 10, 2022, at an Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740, the Court noted that no appearances were entered by either party and dismissed the Complaint without prejudice.  (11-10-22 Minute Order.)

            On December 13, 2022, Plaintiff filed the instant Motion to Vacate Dismissal.  Plaintiff seeks to set aside dismissal of the Complaint on the ground that dismissal was entered because of attorney’s mistake.  (Mot. p. 3.)  Specifically, Plaintiff’s counsel “failed to calendar this matter correctly” by calendaring the OSC date for the 16th instead of the 10th due to confusion in reading the date.  (Taormina Decl. ¶¶ 2-3.)  As a result of this error, counsel did not appear at the hearing.  (Ibid. at ¶ 4.)  Counsel add that a default package was filed on November 14, 2022, because counsel thought the case was still active.  (Ibid.)  The Court notes that a default package has not been received.

The Court finds that Plaintiff’s motion is timely and accompanied by an attorney’s declaration of fault.

However, the Notice of Motion is defective as it contains the wrong address for the courthouse where the hearing on the Motion will take place, as it lists the Stanley Mosk Courthouse address instead of the Spring Street Courthouse address.  Moreover, Plaintiff has not filed proof of serving the Defendants.

For these reasons, the Court continues the hearing on the Motion to allow Plaintiff an opportunity to correct these deficiencies.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on Plaintiff West Central Produce, Inc.’s Motion to Vacate Dismissal is CONTINUED to APRIL 27, 2023 at 10:00 a.m. in DEPARTMENT 25, 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.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is to give notice.