Judge: Kerry Bensinger, Case: 20STCV08781, Date: 2023-04-18 Tentative Ruling

Case Number: 20STCV08781    Hearing Date: April 18, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 3, 2020, plaintiffs Fred Wai Hung Yue (“Yue”) and Tzu-Fi Chu (collectively, “Plaintiffs”), filed this action against PC Palaces, Inc. (“PC Palaces”), Xuong Ha, Ruben Esparza, Phu Mang Phang (“Phang”), David Aguilar, and William Tom and Gertrude Tom as the trustees of the Tom Family Trust.  The action arises from an alleged shooting that occurred on March 9, 2018, at PC Palaces, a restaurant and karaoke bar in South El Monte, California.  Plaintiffs asserted causes of action for (1) assault, (2) battery, (3) intentional infliction of emotional distress, (4) negligence, (5) negligent hiring, supervision, and retention, and (6) false imprisonment.

On May 16, 2022, Defendants PC Palaces and Phang filed a demurrer to the fourth and fifth causes of action and a motion to strike punitive damages.  The Court heard the motion on June 22, 2022 and sustained the demurrer with 20 days leave to amend.  Accordingly, Plaintiffs were required to file the amended complaint by July 14, 2022.  The Court did not rule on the motion to strike and stated that the motion would be revisited following service of Plaintiffs’ amended complaint.

On July 19, 2022, Plaintiffs filed the First Amended Complaint (“FAC”).

PC Palaces and Phang (hereinafter “Defendants”) filed a motion to strike punitive damages from the FAC, as well as the fourth and fifth causes of because the FAC was untimely filed.  The Court heard the motion on October 5, 2022.  In its order, the Court stated that it was not inclined to strike the FAC based on timeliness.  However, because the Plaintiffs failed to address the issue, the Court continued the hearing so that Plaintiffs could provide supplemental briefing as to why the FAC was not timely filed.

          The Court heard the motion to strike on November 8, 2022.  The Court granted Defendants’ motion because Plaintiffs failed to provide any reason why the FAC was untimely even though the Court continued the motion so that they could do so. 

On December 12, 2022, Plaintiff Yue filed this motion seeking relief from the Court’s November 8, 2022 order striking Plaintiffs’ fourth and fifth causes.[1]                     Defendants oppose.

II.          LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (b) provides that a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Cal.App.4th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”].) 

“Although the statute on its face affords relief from unspecified ‘dismissal’ caused by attorney neglect, our courts have, through judicial construction, prevented it from being used indiscriminately by plaintiffs’ attorneys as a ‘perfect escape hatch’ [citation] to undo dismissals of civil cases.”
(Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.)  “[T]he Legislature intended the word ‘dismissal’ to have a limited meaning in the context of the mandatory provision of section 473(b).”  (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148.)  “[T]he mandatory provision only applies narrowly to defaults and dismissals ‘akin’ to defaults....”  (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 482).  “This interpretation is consistent with the statute’s policy to put plaintiffs whose cases are dismissed for counsel’s failure to respond to the dismissal motion on the same footing as defendants who have defaulted because of counsel’s failure to respond. [Citation.]”  (Id. at p. 483.)

III.        DISCUSSION

Plaintiff Yue seeks mandatory relief under Code of Civil Procedure section 473.  Plaintiff’s counsel submits a declaration stating that counsel was at fault for failing to timely file the FAC and to address the lack of timeliness in opposing the motion to strike.

Plaintiff is not entitled to mandatory relief.  “[T]he mandatory provision [of CCP § 473] only applies narrowly to defaults and dismissals ‘akin’ to defaults....”  (Gotschall, supra, 96 Cal.App.4th at p. 482).  “This interpretation is consistent with the statute’s policy to put plaintiffs whose cases are dismissed for counsel’s failure to respond to the dismissal motion on the same footing as defendants who have defaulted because of counsel’s failure to respond. [Citation.]”  (Id. at p. 483.)  Section 473 relief is likewise inapplicable to “discretionary dismissals based on the failure to file an amended complaint after a demurrer has been sustained with leave to amend, at least where, as here, the dismissal was entered after a hearing on noticed motions which required the court to evaluate the reasons for delay in determining how to exercise its discretion.”  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.)   Like in Leader, Plaintiff’s fourth cause of action for negligence and fifth cause of action for negligent hiring, supervision, and retention were dismissed after Defendants’ demurrer was sustained with leave to amend and where the dismissal was entered after a hearing on noticed motions.  Leader is dispositive.  This is not a situation akin to a default.  Plaintiff is not entitled to Section 473 relief.

In the alternative, Plaintiff requests that the Court treat this motion as a motion for reconsideration under Code of Civil Procedure section 1008.  Section 1008 provides, in relevant part, “any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  Here, Defendants served Plaintiff with notice of the Court’s order striking Plaintiff’s fourth and fifth cause of action on November 9, 2022.  Plaintiff filed this motion more than ten days later, on December 12, 2022.  Therefore, Section 1008 is unavailing. 

IV.         CONCLUSION

Based on the foregoing, Plaintiff Fred Wai Hung Yue’s motion is DENIED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

       Dated this 18th day of April 2023