Judge: Kerry Bensinger, Case: 21STCV26195, Date: 2023-08-11 Tentative Ruling

Case Number: 21STCV26195    Hearing Date: August 11, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 11, 2023                                 TRIAL DATE:  Vacated

CASE:                                Barbara Russo, et al. v. Neissan Koroghli, et al.

CASE NO.:                 21STCV26195

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Plaintiffs Barbara Russo and Thoren Rand

RESPONDING PARTY:     Defendants NAK Rancho 18, LLC, Neissan Koroghli, and Azita Koroghli

I.          BACKGROUND

            This is a premises liability action initiated on July 16, 2021.  Subsequently, Plaintiffs Barbara Russo and Thoren Rand filed a First Amended Complaint against Defendants Neissan Korghli, Azita Koroghli, and NAK Rancho 18, LLC. 

            On January 13, 2023, after Plaintiffs failed to appear at the Final Status Conference and at trial, the Court dismissed the FAC without prejudice for lack of prosecution.  The Clerk of the Court mailed noticed of the Court’s order on the same day.

On July 14, 2023, Plaintiffs filed the instant motion to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b). 

Defendants have filed an Opposition and seek sanctions against Plaintiff’s counsel. 

Plaintiffs filed an “Amended Motion” which the Court construes as a Reply.

II.        LEGAL STANDARD

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”].)   

            After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.¿ (Olivera v. Grace (1942) 19 Cal.2d 570, 575-76.)  “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea, supra, 8 Cal.4th at p. 981.)  “Extrinsic mistake is found ... [in] cases involving negligence of a party’s attorney ....” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472.) “ ‘Extrinsic mistake involves the excusable neglect of a party. [Citation.] When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. [Citation.]’ ” (Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.) 

            “To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case.  Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action.  Last, the moving party must demonstrate diligence in seeking to set aside the default once ... discovered.”  (Rappleyea, supra, 8 Cal.4th at p. 982.)

III.      DISCUSSION

Contrary to Plaintiffs’ position, neither discretionary nor mandatory relief under section 473 is available to set aside the January 13, 2023 dismissal.  A motion for relief must be brought within a reasonable time, in no case exceeding six months.  (Code Civ. Proc., § 473, subd. (b); see Rappleyea, supra, 8 Cal.4th at p. 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”].)  Here, the motion was filed beyond six months from the date dismissal was entered.  Plaintiffs concede that the motion was not timely filed.

However, after six months from entry of dismissal, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.¿ (See Olivera, supra, 19 Cal.2d at pp. 575-76.)  One ground for relief is extrinsic mistake.  To set aside a dismissal based upon extrinsic mistake, Plaintiffs must (1) demonstrate that it has a meritorious case; (2) articulate a satisfactory excuse for failing to appear for the Final Status Conference and Trial, and (3) demonstrate diligence in seeking to set aside the default once discovered.”  (Rappleyea, supra, 8 Cal.4th at p. 982.)    

First, Plaintiffs state that Plaintiff Russo rented from Defendants a house that included a deteriorated backyard deck.  Specifically, Russo notified Defendants about the deck’s condition and requested that it be repaired.  Defendants did not repair the deck and Russo, unaware of the extent of the damage, suffered injuries when the deck gave away underneath Russo while walking upon it.  Defendants do not dispute the merits of the claim.

The Court will hear from counsel as to the Second and Third factors.  Counsel should be prepared to address the following issues among others:

 Rule of Professional Conduct 1.16(a) and (c). Was Plaintiff’s counsel obligated to move for leave of court to withdraw from the case given his absence? 

The email address for Plaintiff’s counsel is the same on the Complaint as it is on the motion to set aside.  This same email address was used for correspondence and notices from opposing counsel.  Did Plaintiff’s counsel use and access this email account after being deployed?   

The Court will hear from counsel

Dated:   August 11, 2023                                          ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.