Judge: Kerry Bensinger, Case: 21STCV09545, Date: 2023-02-22 Tentative Ruling

Case Number: 21STCV09545    Hearing Date: February 22, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

           On March 10, 2021, plaintiff Magdalena Torres filed this action against Joel Torres (“Defendant”) for injuries arising from motor vehicle negligence and general negligence.

          On July 20, 2022, the Court granted Defendant’s discovery motions and ordered Plaintiff to provide verified responses to Defendant’s written discovery and pay monetary sanctions within 20 days.  Plaintiff did not oppose Defendant’s discovery motions or appear at the hearing.  On July 27, 2022, Defendant filed notice of the Court’s ruling and proof of service of the same.

          On September 13, 2022, the Court granted Defendant’s motion for terminating sanctions after Plaintiff failed to provide responses, pay the monetary sanctions, or oppose the motion for terminating sanctions.  The Court ordered Plaintiff’s complaint dismissed without prejudice.

          Plaintiff now moves to set aside the dismissal based on the grounds of excusable neglect.  Defendant filed an opposition and Plaintiff filed a reply.

II.      LEGAL STANDARDS

“[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.”  (Code Civ. Proc., § 473, subd. (b).)  “Excusable neglect exists when ‘a reasonably prudent person in similar circumstances might have made the same error.’ [Citation.]”  (County of San Bernardino v. Mancini (2022) 83 Cal.App.5th 1095, 1103.)

“Because the law favors disposing of cases on their merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.”  (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696, quotations omitted.)

III.     DISCUSSION

Plaintiff seeks an order to set aside the order dismissing her Complaint because of Plaintiff’s counsel Ameer Shah’s excusable neglect.  In support of this motion, Plaintiff submits the declaration of Ameer Shah (“Shah”), Plaintiff’s Counsel, wherein Shah attests that the dismissal was the result of his own mistake, inadvertence or neglect.  In his declaration, Shah states it is his customary practice to attend all hearings, meet all calendared deadlines, to review his discovery calendar and hearings calendar on a regular basis, and to consult with plaintiffs and respond to all written discovery.  (Shah Decl., ¶¶ 6-8.)  However, Shah states that he did not appear at the hearings for the motions to compel discovery and for terminating sanctions and failed to respond to Defendant’s written discovery because Patrick Welch (“Welch”), Shah’s calendar clerk and paralegal, did not calendar the hearings and actively concealed the discovery issues in this case.  (Shah Decl., ¶¶ 4-5.)  Shah further states that he first learned of the dismissal in this case in late November 2022 while conducting an inventory of his files.  (Shah Decl., ¶ 10.) 

Plaintiff also submits Welch’s declaration in support of this motion.  In his declaration, Welch states that his work performance was affected by medical issues, which included attending numerous medical appointments for orthopedic and vascular issues, hospitalization due to an adverse reaction to a COVID-19 booster shot, later testing positive for COVID-19, and hospitalization due to a pulmonary embolism.  (Welch Decl., ¶¶ 5, 6, 8, 9, 12.)  Particularly relevant here is that Welch confirms Shah’s representations (Welch Decl., ¶¶ 8-11) and further states that he did not inform Shah of the Court’s ruling on Defendant’s motions to compel for fear of getting fired (Welch Decl., ¶ 10).  Welch also states that became aware of the Court’s order granting terminating sanctions in late October 2022 but failed to apprise Shah of the dismissal (Welch Decl., ¶ 12). 

Defendant contends that Plaintiff is not entitled to relief under Section 473 because Shah was notified by email about outstanding discovery and Defendant’s intention to file motions to compel and for terminating sanctions.  In support of this contention, Defendant submits email correspondence which shows that written discovery, meet and confer letters, the motions, and the Court’s tentative and final rulings on the motions to compel were sent to Shah’s email address at ameer@ashahlaw.com.  (See Tsymbaloff Decl., Exs. A-O.) 

In reply, Plaintiff argues that the email ameer@ashahlaw.com is commonly used by the staff at the Law Offices of Ameer Shah.  Shah does not use the email address to communicate.  Moreover, Shah never personally responded to any of the emails.  In support of this argument, Plaintiff submits email correspondence which shows that Welch responded to Defendant’s counsel, not Shah.  (Reply, Exs. A-H.)   

Based on the foregoing, the Court finds that Plaintiff is entitled to an order setting aside the dismissal of her Complaint.  Shah’s failure to attend the hearings at issue and to respond to written discovery fall within the definition of excusable neglect because Shah reasonably relied on Welch to calendar the hearings and to apprise Shah that Defendant had propounded written discovery.  In sum, Plaintiff demonstrates that dismissal was entered because of the neglect of Shah and Shah’s office alone.   The Court further notes Plaintiff has filed this motion within six months after this Court ordered dismissal of her Complaint.  (Code Civ. Proc., § 473, subd. (b).)

IV.     CONCLUSION

Accordingly, the Motion to set aside the September 13, 2022 dismissal is granted and the action is reinstated. 

Trial is set for _____________________ at 8:30 a.m. in Department 27 and the final status conference is set for ________________, at 10:00 a.m. in Department 27. 

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 22nd day of February 2023