Judge: Katherine Chilton, Case: 22STLC02945, Date: 2023-01-19 Tentative Ruling

Case Number: 22STLC02945     Hearing Date: January 19, 2023    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL OF COMPLAINT

MOVING PARTY:   Plaintiff/Cross-Defendant South Gate Pack N Ship, LLC

RESP. PARTY:         NONE

PROCEEDINGS:      MOTION TO SET ASIDE/VACATE DISMISSAL OF CROSS-COMPLAINT

MOVING PARTY: Defendant/Cross-Complainant Liberty Plaza, LLC

RESP. PARTY:         NONE

MOTION TO SET ASIDE/VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiff/Cross-Defendant South Gate Pack N Ship, LLC’s Motion to Set Aside Dismissal of Complaint (erroneously named “Motion for Reconsideration”) is GRANTED.  Dismissal of the Complaint, entered on October 18, 2022, is hereby VACATED.

Defendant/Cross-Complainant Liberty Plaza, LLC’s Motion to Set Aside Dismissal of Cross-Complaint is GRANTED.  Dismissal of the Cross-Complaint, entered on October 18, 2022, is hereby VACATED.

SERVICE: 

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

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

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

OPPOSITION:          None filed as of January 12, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of January 12, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 27, 2022, Plaintiff South Gate Pack N Ship, LLC (“Plaintiff” or “South Gate”) filed an action against Liberty Plaza, LLC (“Defendant” or “Liberty Plaza”) for breach of contract, accounting, and violation of Business and Professions Code § 17200, et seq.

On May 26, 2022, Defendant Liberty Plaza filed an Answer to the Complaint.  Defendant concurrently filed a Cross-Complaint against Plaintiff/Cross-Defendant South Gate and Cross-Defendant Cesar Caranza (“Caranza”) for (1) breach of contract, (2) tortious interference with contractual relations, (3) trespass, (4) injunction, and (5) damages.

On June 27, 2022, South Gate filed a Demurrer to the Cross-Complaint.  The Court overruled the Demurrer on July 28, 2022.  (7-28-22 Minute Order.)  On August 9, 2022, South Gate filed an Answer to the Cross-Complaint.

At an Order to Show Cause (“OSC”) scheduled on October 18, 2022, the Court noted that no appearances were entered by Southgate or Liberty Plaza and dismissed both the Complaint and the Cross-Complaint without prejudice.  (10-18-22 Minute Order.)

On November 2, 2022, South Gate filed the instant Motion to Set Aside Dismissal of Complaint (“Motion re: Complaint”) (erroneously named “Motion for Reconsideration and Relief from Dismissal Order”), originally scheduled for January 24, 2023.  No opposition has been filed.  On January 12, 2023, the Court, on its own motion, rescheduled the hearing on the Motion for January 19, 2023, and served the Minute Order on South Gate and Liberty Plaza.  (1-12-23 Minute Order; Certificate of Mailing.)

On November 17, 2022, Liberty Plaza filed the instant Motion to Set Aside Dismissal of Cross-Complaint (“Motion re: Cross-Complaint”).  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

A.    Set Aside Dismissal of Complaint

At an Order to Show Cause (“OSC”) scheduled on October 18, 2022, the Court noted that no appearance was entered by Southgate and dismissed the Complaint without prejudice.  (10-18-22 Minute Order.)

On November 2, 2022, South Gate filed the instant Motion to Set Aside Dismissal of Complaint (erroneously named “Motion for Reconsideration and Relief from Dismissal Order”).  South Gate seeks to set aside dismissal of the Complaint on the ground that dismissal was entered due to counsel’s mistake.  (Newman Decl. ¶ 4.)  Specifically, South Gate had already filed an Answer to the Cross-Complaint on August 9, 2022, and thus, counsel believed that the OSC Re: South Gate’s Answer to the Cross-Complaint would be vacated and he would not need to appear on October 18, 2022.  (Ibid. at ¶¶ 2-4, Ex. A.)  Counsel apologizes to the Court for his mistaken assumption.  (Ibid. at ¶ 4.)

The Court finds that South Gate’s Motion re: Complaint is timely and accompanied by counsel’s declaration of fault.  For this reason, South Gate’s Motion is GRANTED, and dismissal of the Complaint, entered on October 18, 2022, is hereby VACATED.

B.    Set Aside Dismissal of Cross-Complaint

At an Order to Show Cause (“OSC”) scheduled on October 18, 2022, the Court noted that no appearance was entered by Liberty Plaza and dismissed the Cross-Complaint without prejudice.  (10-18-22 Minute Order.)

On November 17, 2022, Liberty Plaza filed the instant Motion to Set Aside Dismissal of Cross-Complaint.  Liberty Plaza seeks to set aside dismissal of the Cross-Complaint on the ground that dismissal was entered due to counsel’s “inadvertent failure to file the proof of service of Cross-complaint on defendant Cesar Carranza or attend the OSC hearing on October 18, 2022.”  (Mot p. 2.). Specifically, Liberty Plaza’s counsel did not appear at the OSC because he “inadvertently did not notice the notice of the hearing which was attached to the end of the ruling on the previous demurrer filed by plaintiff that was served on both parties by the clerk by mail.”  (Selki Decl. ¶ 4.)  Counsel also mistakenly believed that the proof of service of the Cross-Complaint on Carranza had been filed with the Court.  (Ibid. at ¶ 5.)  Counsel has now filed Proof of Service indicating that Carranza was served with the Cross-Complaint.  (11-16-22 Proof of Service.)

The Court finds that Liberty Plaza’s Motion re: Cross-Complaint is timely and accompanied by counsel’s declaration of fault.  For this reason, Liberty Plaza’s Motion is GRANTED, and dismissal of the Cross-Complaint, entered on October 18, 2022, is hereby VACATED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff/Cross-Defendant South Gate Pack N Ship, LLC’s Motion to Set Aside Dismissal of Complaint (erroneously named “Motion for Reconsideration”) is GRANTED.  Dismissal of the Complaint, entered on October 18, 2022, is hereby VACATED. Defendant/Cross-Complainant Liberty Plaza, LLC’s Motion to Set Aside Dismissal of Cross-Complaint is GRANTED.  Dismissal of the Cross-Complaint, entered on October 18, 2022, is hereby VACATED.

Trial is set for June 20, 2023 at 8:30 a.m. in Department 25.

Moving party is ordered to give notice.