Judge: Katherine Chilton, Case: 21STLC02421, Date: 2023-05-25 Tentative Ruling

Case Number: 21STLC02421     Hearing Date: May 25, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:   Plaintiff Thomas Boule

RESP. PARTY:         None

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff Thomas Boule’s Motion to Set Aside Dismissal is GRANTED, and dismissal entered on September 22, 2022, is hereby VACATED.  However, Plaintiff’s Motion to Enter Stipulation for Civil Judgment is DENIED.

SERVICE: 

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

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

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

OPPOSITION:          None filed as of May 23, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of May 23, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 25, 2021, Plaintiff Thomas Boule (“Plaintiff”) filed an action against Defendant Luxury Meetings, Inc., a California corporation (“Defendant”) for breach of written guaranty agreement, breach of written agreement, and unjust enrichment.

On January 24, 2022, Plaintiff filed an Amendment to Complaint, adding Defendant Jacob Ahrens (“Ahrens”) as Doe 1.  On the same day, Plaintiff also filed Amendment to Complaint correcting Defendant’s name to Luxury Meetings, Inc., a Delaware corporation.

Non-Jury Trial was scheduled for September 22, 2022.  (3-25-21 First Amended Standing Order.)  On September 22, 2022, the Court noted that no appearances were entered for Plaintiff or Defendants and dismissed the Complaint without prejudice.  (9-22-22 Minute Order.)

            On February 16, 2023, Plaintiff filed a Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment.  The Court denied Plaintiff’s Motion, finding that Plaintiff’s counsel’s declaration and reasoning for failing to attend the hearing on September 22, 2022, were not sufficient to set aside dismissal.  (3-13-23 Minute Order.)

            On May 3, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment (“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 September 22, 2022, the date set for Non-Jury Trial, the Court noted that no appearances had been entered by Plaintiff or Defendants and dismissed the Complaint without prejudice.  (9-22-22 Minute Order.)

            On March 13, 2023, the Court denied Plaintiff’s Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment.  (3-13-23 Minute Order.)

            On May 3, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and Enter Stipulation for Civil Judgment (“Motion”).

            Plaintiff’s counsel states the parties signed a Settlement Agreement to settle the action on or around April 7, 2022.  (Emanuel Decl. ¶ 1, Ex. C.)  Defendants Luxury Meetings, Inc. and Jacob Ahrens signed a Stipulation for Entry of Judgment on or around April 7, 2022.  (Ibid. at ¶ 2, Ex. B.)  Defendants were served with a Notice of Default on May 23, 2022.  (Ibid. at ¶  3.)  On August 12, 2023, Plaintiff reserved a hearing date for a Motion to Enforce Settlement, with the earliest available date for the hearing being November 14, 2022.  (Ibid. at ¶ 4.)  Plaintiff’s counsel assumed that scheduling this hearing would cause the Court to continue the trial date or take it off calendar.  (Ibid. at ¶ 5.)  The Court dismissed the action without prejudice given that Plaintiff did not appear on September 22, 2022, the date scheduled for trial.  (Ibid. at ¶ 6.)  After the initial motion to set aside dismissal was denied, Plaintiff’s counsel attempted to contact Defendant on March 13 and March 19, 2023, regarding a stipulation to vacate the dismissal, but Defendant did not respond to Plaintiff’s counsel’s communication attempts.  (Ibid. at ¶ 8, Ex. D.)  Plaintiff argues that the dismissal must be set aside pursuant to Code of Civil Procedure § 473(b), as the case was dismissed due to Plaintiff’s counsel’s mistaken belief and failure to appear at the hearing.  (Mot. pp. 5-6.)  Plaintiff’s counsel states that “[t]he case is settled and setting aside the dismissal will allow the enforcement of the settlement and have the Stipulation and Judgment entered.”  (Emanuel Decl. ¶ 8.)

Given the attorney’s affidavit of fault and the proof of stipulation and settlement filed by Plaintiff, the Court grants Plaintiff’s Motion to Set Aside Dismissal pursuant to Code of Civil Procedure § 473(b).

However, the Court notes that the Stipulation for Entry of Judgment and the Settlement Agreement are not signed by Plaintiff or Plaintiff’s counsel.  (See Emmanuel Decl. ¶¶ 1-2, Exs. A, C.)  Thus, the Court does not enter judgment based on the Stipulation.

Accordingly, Plaintiff’s Motion to Set Aside Dismissal is GRANTED, and dismissal entered on September 22, 2022, is hereby VACATED.  Plaintiff’s Motion to Enter Stipulation for Civil Judgment is DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Thomas Boule’s Motion to Set Aside Dismissal is GRANTED, and dismissal entered on September 22, 2022, is hereby VACATED.  However, Plaintiff’s Motion to Enter Stipulation for Civil Judgment is DENIED.

A Status Conference is set for July 25, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is to give notice.