Judge Kerry Bensinger, Case Number: 20STCV44623, Date: 2023-10-16 Tentative Ruling

On November 20, 2020, Plaintiffs, Alma Lorena Castro and Maria de la Rosa, initiated this action against Defendant, Bodega Latina Corporation dba El Super, arising from two July 18, 2020 slip and fall incidents.

On May 3, 2021, Defendant filed motions to compel Ms. Castro’s responses to the First Set of Defendant’s Form Interrogatories, Special Interrogatories, and Request for Production. The Court granted the motions. Thereafter, Ms. Castro served responses to the Form and Special Interrogatories only.

Having not received Ms. Castro’s responses to the Request for Production, Defendant filed a motion to compel Ms. Castro’s compliance. The Court granted the motion on December 12, 2022. Ms. Castro did not serve the responses despite a court order so directing.

On January 30, 2023, Defendant filed a motion that appeared to request an order to compel Ms. Castro’s compliance and for terminating sanctions. Given the lack of clarity, on March 21, 2023, the Court continued the hearing and directed Defendant to re-file and re-serve their motion.

On March 23, 2023, Defendant filed a motion for terminating sanctions. The motion was based on Ms. Castro’s failure to serve responses to the Request for Production. The Court granted the motion on April 26, 2023, and dismissed Ms. Castro’s complaint against Defendant. Plaintiff did not file opposition or appear at the hearing.

On May 12, 2023, Ms. Castro filed this motion to set aside the dismissal. Defendant opposes and Plaintiff replies.

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”].)

“The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence or neglect of his adversary.” (Palmer v. Moore (1968) 266 Cal.App.2d 134, 142.)

Ms. Castro argues she is entitled to mandatory relief from dismissal. In support, Ms. Castro offers the declaration of her counsel, Kenneth Yeager, who states the dismissal was due to his mistake, inadvertence, or excusable neglect in failing to calendar the hearing date for Defendant’s motion for terminating sanctions. (Yeager Decl., ¶¶ 9-10.) Mr. Yeager further represents that Defendant misrepresents not having received Ms. Castro’s discovery responses, which were served by email and postal mail. (Yeager Decl., ¶ 7.) Mr. Yeager also attaches a copy of Ms. Castro’s responses to Defendant’s Request for Production, Set One. (See Yeager Decl., Ex. 5.) The responses were verified on June 2, 2021.[1] (Id.)

Defendant argues the motion should be denied because Mr. Yeager appeared for the March 21, 2023 hearing for Defendant’s terminating sanctions motion. At that hearing, the Court stated it would continue the hearing to allow Defendant to re-file and re-serve their motion. As such, Mr. Yeager knew the date of the continued hearing. Further, Defendant points out there is no proof of service attached to Ms. Castro’s discovery responses. As such, there is no proof that Plaintiff served the responses at all.

Defendant is correct as to the two points. Mr. Yeager appeared at the March 21, 2023 hearing and proof of service is not attached to Ms. Castro’s responses to the Request for Production. Nonetheless, Plaintiff is entitled to relief. Mr. Yeager’s representation that he failed to calendar the April 26, 2023 hearing date is not at odds with his appearance at the March 21, 2023 hearing. As to Ms. Castro’s discovery responses, she has now submitted them as part of her motion. Further, as it is undisputed that Ms. Castro timely sought relief roughly two weeks after the Court dismissed her complaint, the Court must grant this motion. 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).)

Here, the Court finds the dismissal was entered due to Mr. Yeager’s mistake, inadvertence, or excusable neglect. Given the policy favoring disposition of cases upon their merits and Mr. Yeager’s averments in support of a timely motion for relief, Ms. Castro is entitled to an order vacating the dismissal. Defendant’s arguments to the contrary are not persuasive.

The motion to set aside dismissal is GRANTED. The dismissal of Plaintiff Alma Lorena Castro’s Complaint on April 26, 2023 is VACATED. Plaintiff is to file proof of service of her discovery responses to Defendant’s Request for Production, Set, One, within 5 days of this order.

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.

[1] The date is handwritten and appears as follows: “6-2-221”. The parties dispute whether this apparent typo means Plaintiff verified the responses in 2021 or 2022. The Court takes the former view. Whatever the case, the date is immaterial to the Court’s ruling.

[2] The Court will discuss the dates with counsel.

The matter is still on the trial calendar. It wasn't taken off presumably because the other plaintiff is still in the case. Trial is scheduled for December 8, 2023. [AS1]