Judge Kerry Bensinger, Case 20STCV22189 2023-04-06 Tentative Ruling

On June 11, 2020, plaintiff Carl Baker (“Plaintiff”) filed this action against defendant Jorge Martinez (“Defendant”) for injuries arising from a June 14, 2018 motor vehicle accident. At the time of the alleged accident, Plaintiff was working in the course and scope of his employment with the City of Los Angeles (“City”). City filed a subrogation action against Defendant to recover worker’s compensation benefits paid on Plaintiff’s behalf in the related case City of Los Angeles v. Martinez, Case No. 20STCV20865.

On June 29, 2022, the Court dismissed Plaintiff’s Complaint without prejudice after Plaintiff did not appear at the final status conference or non-jury trial.

On November 23, 2022, Plaintiff filed the instant motion to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b).

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”].)

Plaintiff’s counsel declares that he is unsure how the incorrect trial date was entered into the calendar, but that the error, whatever the cause, is excusable. (See Panah Decl.) Further, Plaintiff sought relief within six months after the Court dismissed Plaintiff’s complaint.

In opposition, Defendant argues that Plaintiff has not provided a reasonable explanation as to why Plaintiff delayed nearly five months before seeking relief from dismissal.

Defendant correctly points out Plaintiff’s counsel provides a poor explanation for the nearly five-month delay in seeking relief under section 473. However, “[t[he general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.) Here, Plaintiff’s counsel stated he and/or his office miscalendared the trial date, and the delays are attributable to his errors and neglect. The only saving grace from the Plaintiff is that his motion was made within the six-month jurisdictional period. Given the foregoing reasons, and the Legislative intent that actions be determined on their merits, the Court is inclined to grant Plaintiff relief from dismissal.

However, Defendant argues he would be prejudiced if Plaintiff’s motion is granted because Defendant has already resolved the related case, City of Los Angeles v. Martinez, Case No. 20STCV20865. In support, Defendant cites Labor Code section 3850 et seq. for the proposition that Plaintiff is barred from seeking double recovery against Defendant. “The statutory scheme of section 3850 et seq. is designed to prevent double recovery by an employee or an employer, and to preclude double liability being imposed on a third-party tortfeasor.” (McKinnon v. Otis Elevator Co. (2007) 149 Cal.App.4th 1125, 1130.) The parties fail to sufficiently address this issue. Nor does Defendant provide a record to enable the Court to determine whether City provided notice to Plaintiff that City and Defendant had reached a settlement or whether Plaintiff provided his consent to the settlement agreement. (See Labor Code section 3859, subdivision (a) [“No release or settlement of any claim under this chapter as to either the employee or the employer is valid without the written consent of both. Proof of service filed with the court is sufficient in any action or proceeding where such approval is required by law.”]; see also Labor Code section 3860, subdivision (a) [“No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of [workers’] compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, and opportunity to the employee to recover all damages he has suffered....”].) Given the risk of prejudice to Defendant if Plaintiff’s action is reinstated, and the undeveloped record as to the preclusive effect of Labor Code section 3850 et seq. to Plaintiff’s action, the Court will hear argument from the parties at the hearing.

The Court will hear argument from the parties regarding Defendant’s settlement with the City of Los Angeles in related case, City of Los Angeles v. Martinez, Case No. 20STCV20865, and whether reinstatement of Plaintiff’s action in this case will prejudice Defendant by permitting a potential double recovery against Defendant.

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’s 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.


	Hon. Kerry Bensinger Judge of the Superior Court