Judge: Katherine Chilton, Case: 21NWLC40219, Date: 2023-04-27 Tentative Ruling

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

PROCEEDINGS:      MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:   Plaintiff West Central Produce, Inc.

RESP. PARTY:         None

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff West Central Produce, Inc.’s Motion to Set Aside Dismissal is DENIED without prejudice.

SERVICE: 

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

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

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

OPPOSITION:          None filed as of April 24, 2023                [   ] Late                      [X] None

REPLY:                     None filed as of April 24, 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 & Cafe, 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.

On March 27, 2023, the Court continued the hearing on this motion to April 27, 2023 and ordered Plaintiff to submit supplemental papers to address issues regarding the notice of the motion containing the wrong address for the courthouse and Plaintiff having failed to submit a proof of service of the motion on the Defendants.

II.              Legal Standard

            Under 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 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, on March 27, 2023, the Court found the Notice of Motion to be defective because it contains the wrong address for the courthouse where the hearing on the Motion would take place, as it lists the Stanley Mosk Courthouse address instead of the Spring Street Courthouse address. The Court also found that Plaintiff has not filed proof of serving the Defendants. The Court continued the hearing on this matter until April 27, 2023 and ordered Plaintiff to submit supplemental papers addressing these issues at least 16 court days before the continued hearing date. The Court further warned Plaintiff that the failure to comply with this order may result in the motion being placed off calendar or denied.

As of the date of this ruling, Plaintiff has not submitted any of the requested documentation to correct these deficiencies. Accordingly, Plaintiff has failed to correct the deficiencies previously identified by the Court, and the Court will deny the motion without prejudice.

IV.           Conclusion & Order

Plaintiff West Central Produce, Inc.’s Motion to Set Aside Dismissal is DENIED without prejudice.

Moving party is ordered to give notice.