Judge Kerry Bensinger, Case 20STCV34886 2023-01-20 Tentative Ruling

JEFFREY KRAMER,

Plaintiff,

vs.

CHRISTOPHER JOH CHO,

Defendant.

)

CASE NO.: 20STCV34886

[TENTATIVE] ORDER RE: SET ASIDE/VACATE DISMISSAL

Dept. 27

1:30 p.m.

January 20, 2023

On September 11, 2020, Plaintiff Jeffrey Kramer (“Plaintiff”) filed this action against Defendant Christopher Joh Cho (“Defendant”) for damages arising from a motor vehicle accident which occurred on September 19, 2018.

On March 11, 2022, the Court ordered dismissal of the action after neither party appeared at the Non-Jury Trial. Plaintiff had not communicated with the Court as to his non-appearance.

On September 14, 2022, Plaintiff filed a motion to set aside/vacate the dismissal.

“[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.) After expiration of the 6-month period, defendant may obtain relief by showing “lack of notice” of the proceedings. (CCP § 473.5.) Relief must be sought within 2 years of the default judgment or 180 days after service of a written notice that the default judgment has been entered, whichever is earlier. (CCP § 473.5(a).)

The Court notes that Plaintiff’s motion is filed three days after the six-month cut-off. Plaintiff’s counsel states that the certificate of mailing was never received by Plaintiff’s counsel. Additionally, Plaintiff’s counsel points out that because the Court served the order of dismissal by mail, “any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days.” (CCP § 1013(a).) Thus, Plaintiff’s motion is timely because it is within the five calendar days of the six-month period.

Plaintiff’s counsel states that after the lawsuit was filed, he moved a number of files from his law office to his home and a storage facility. (Kazan Decl. ¶ 4.) Plaintiff’s counsel states that Plaintiff’s file had been misplaced and could not be located until recently. (Kazan Decl. ¶ 5.) Plaintiff’s counsel states that he failed to calendar the Final Status Conference and the Non-Jury Trial. (Kazan Decl. ¶ 4.) Because of this failure, he did not appear at court for either of the scheduled hearings. (Kazan Decl. ¶ 5.)

Once Plaintiff’s file was found, Plaintiff’s counsel states that he checked the court’s website to find out the status of the case and found out the case had been dismissed. (Kazan Decl. ¶ 9.)

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.