Judge Kerry Bensinger, Case 21STCV05339 2023-03-29 Tentative Ruling

On February 10, 2021, plaintiff Raymond Alvandi (“Plaintiff”) filed this action against defendant Glendale Fashion Associates, LLC (“Defendant”) for injuries Plaintiff sustained in a slip and fall on Defendant’s premises on March 2, 2019.

On August 10, 2022, the Court dismissed the Complaint without prejudice after neither appeared for the Final Status Conference or Non-Jury Trial.

On February 8, 2023, Plaintiff filed the instant Motion to Set Aside Dismissal and to Reinstate the Complaint.

The court has broad discretion to vacate the entry of default, default judgment, or a dismissal where the moving party timely establishes a proper ground for relief. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Code of Civil Procedure, section 473, subdivision (b) contains two distinct provisions for relief from default: a discretionary provision and a mandatory provision. (Code Civ. Proc., § 473, subd. (b).) Under the discretionary provision, the court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Id.)

Plaintiff’s motion is timely. Application for relief under Code of Civil Procedure, section 473, subdivision (b), shall be made in no case exceeding six months. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (section 473 is unavailable when more than six months have elapsed from entry of default).) Here, Plaintiff filed this motion on February 8, 2023—just prior to the six-month bar.

The motion is supported by the declaration of Nigol Manoukian, counsel for Plaintiff. Counsel declares: “I failed to calendar and appear for both the Final Status Conference on July, 27, 2022 and at Trial on August 10, 2022. I assume full responsibility for my mistake and apologize to the court for not timely serving said complaint and failing to properly calendar and appear at the Final Status Conference on July 27, 2022 and at Trial on August 10, 2022. Plaintiff is not in any way responsible for my failures and thus should not be prejudiced with the dismissal of the action.” (See Manoukian Decl.) Counsel makes clear that dismissal of this action is attributable to his mistake, and not Plaintiff.

Based on the foregoing, the motion to set aside the August 10, 2022 dismissal is GRANTED and the action is reinstated. Trial is set for December 5, 2023 at 8:30 a.m. in Department 27 of Spring Street Courthouse. The Final Status Conference is set for November 21, 2023 at 10:00 a.m. in Department 27 of Spring Street Courthouse. Plaintiff is ordered to file proof of service of the summons and complaint on Defendant within 30 days of notice 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.

Hon. Kerry Bensinger

Judge of the Superior Court