Judge Kerry Bensinger, Case 21STCV29617 2023-05-01 Tentative Ruling

On August 10, 2021, plaintiffs Stephen H. Quan and Phuong T. Quan (collectively, “Plaintiffs”) filed this action in propria persona against defendants Dereik Driscoll and Driscoll Electric, Inc. (collectively, “Defendants”) for negligently performing electrical repairs resulting in a fire, loss of electric power, and necessitating Plaintiffs to vacate all tenants from their place of business. Default was entered against defendant Dereik Driscoll on July 25, 2022. Driscoll Electric has yet to appear in this action

On February 7, 2023, the Court dismissed Plaintiffs’ complaint after Plaintiffs failed to appear for the Final Status Conference and Non-Jury Trial. The Clerk of the Court mailed notice of the order dismissing Plaintiffs’ Complaint on the same day.

On February 28, 2023, Plaintiff Stephen H. Quan filed the instant motion for reconsideration.

A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” (Code Civ. Proc. § 1008, subd. (a).) The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (Ibid.; see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown. (Code Civ. Proc., § 1008, subd. (a).) Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

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.”

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”].)

Plaintiff’s motion for reconsideration is untimely. A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” (Code Civ. Proc. § 1008, subd. (a).) Here, Plaintiff filed this motion on February 28, 2023—more than 10 days after the Clerk of the Court provided notice of the Court’s order dismissing Plaintiffs’ Complaint without prejudice.

Plaintiff argues that the ten-day deadline for seeking reconsideration has not passed because defendants, as the prevailing party, did not serve notice of the Court’s order dismissing the Complaint. For this proposition, Plaintiff cites Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 203. However, Forrest is distinguishable. Defendants have not appeared in this case. Therefore, defendants are not parties, let alone a prevailing party, in this case. Plaintiff’s motion for reconsideration is untimely.

Notwithstanding the untimeliness of the motion for reconsideration, the Court construes Plaintiff’s motion as a motion to set aside dismissal. 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.” 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.)

Here, Plaintiff has sought relief less than a month after dismissal of their Complaint. Further, Plaintiff declares that Plaintiffs were unavailable to attend the final status conference and trial. Specifically, Plaintiffs were out of the country attending to family matters. Plaintiff states that he provided notice to the Court regarding Plaintiffs’ unavailability on January 23, 2023, and February 6, 2023. (Quan Decl.) Based on the foregoing, the Court finds that Plaintiffs’ failure to appear at the Final Status Conference and Trial is excusable and falls within the meaning of § 473.

Plaintiff’s motion, construed as motion to set aside the February 7, 2023 dismissal, is GRANTED and the action is reinstated. Trial is set for December 13, 2023 at 8:30 a.m. in Department 27 of Spring Street Courthouse. The Final Status Conference is set for November 29, 2023 at 10:00 a.m. in Department 27 of Spring Street Courthouse.

Plaintiffs are ordered to file proof of service of the summons and complaint on Defendant Driscoll Electric within 30 days of notice of this order.

Plaintiffs may pursue default judgment against Defendant Dereik Driscoll. The Court set a hearing re: OSC for Failure to File Default Judgment Against Dereik Driscoll for November 29, 2023 at 8:30 am. In Department 27 of the Spring Street Courthouse.

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’s 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