Judge: Kerry Bensinger, Case: 21STCV06760, Date: 2023-03-30 Tentative Ruling

Case Number: 21STCV06760    Hearing Date: March 30, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.                   INTRODUCTION

On February 19, 2021, plaintiff Maurice Claff (“Plaintiff”) filed this action against defendants Sprouts Farmers Markets, Inc., Sprouts Farmers Markets, and LA Canada Holdings, (“Defendant”) for injuries Plaintiff sustained in a slip and fall on Defendants’ premises on April 5, 2019. 

The parties reached a settlement agreement for the sum of $10,000.  However, Plaintiff passed away prior to finalizing settlement.  Plaintiff’s counsel submitted a Successor-in-Interest declaration to finalize resolution of the claim and subsequently filed a Notice of Settlement of the Entire Case.  The Court noticed an Order to Show Cause Re: Dismissal (Settlement) set for November 1, 2022.  However, no appearance on behalf of Plaintiff was made and the Court ordered the case dismissed.

On November 8, 2022, Plaintiff Nancy Claff as Successor-In-Interest filed the instant Motion to Set Aside Dismissal. 

The motion is unopposed.   

II.                LEGAL STANDARD

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.)

III.             ANALYSIS

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 November 8, 2022, a week after the Court ordered the case dismissed. 

The motion is also supported by the declaration of John A. Sheehan, counsel for Plaintiff.  Counsel declares: “The dismissal was not due to any fault of Plaintiff, but instead was due to my fault neglect and inadvertence.  The dismissal of Plaintiff’s action on November 1, 2022 was due to my fault and neglect.”  (See Sheehan Decl.)  Counsel makes clear that dismissal of this action is attributable to his mistake, and not Plaintiff.

IV.             CONCLUSION

Based on the foregoing, the motion to set aside the November 8, 2022 dismissal is GRANTED and the action is reinstated.  On the Court’s own motion, the Court sets an Order to Show Cause Re: Dismissal (Settlement) for June 6, 2023 at 8:30 a.m. in Department 27 of Spring Street Courthouse.

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 30th day of March 2023