Judge: Latrice A. G. Byrdsong, Case: 21STCV13726, Date: 2023-10-17 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STCV13726    Hearing Date: October 17, 2023    Dept: 25

Hearing Date:                        Tuesday, October 17, 2023

Case Name:                             SKY WATER FIRE PROTECTION, INC. v. DEFENDANTS ZENON KESIK, AND DOES 1-50

Case No.:                                21STCV13726

Motion:                                   Motion to Set Aside Dismissal

Moving Party:                         Plaintiff Sky Water Fire Protection, Inc.

Responding Party:                   Defendant Zenon Kesik

Notice:                                    OK

Recommended Ruling:           Plaintiff Sky Water Fire Protection, Inc.’s Motion to Set Aside Dismissal is GRANTED. Defendant’s request for attorney’s fees against Plaintiff is GRANTED in the total amount of $1,850.00.

BACKGROUND

            On April 12, 2021, Plaintiff Sky Water Fire Protection, Inc. filed a complaint against Defendant Zenon Kesik (“Defendant”), and Does 1-50, alleging causes of action for (1) breach of written construction contract, (2) complaint for work, labor, services, and materials, (3) open book account, and (4) accounts stated. On October 15, 2019, Plaintiff states it executed and entered into a written agreement with Defendant where Plaintiff was to takeover the project from previous contractor, pre work inspection, testing for hydro of fire sprinklers, at the property located at 1704 W. Manchester Ave., Los Angeles, CA 90047. Plaintiff alleges that it completed all the required work pursuant to the parties’ contract at the property, but Defendant failed to pay an unpaid balance of $23,112.00.

On June 26, 2023, on the date set for Non-Jury Trial, the Court noted that no appearances were entered by Plaintiff and dismissed the Complaint without prejudice. (06/26/23 Minute Order.)

On June 28, 2023, Plaintiff filed the instant Motion for Reconsideration of Order Dated 06/26/23 (“Motion”). Defendant filed an Opposition to the Motion on August 28, 2023. Plaintiff filed a Reply on August 31, 2023. On September 11, 2023, the Court denied Plaintiff’s Motion for Reconsideration of the Court’s Dismissal Order without prejudice due to Plaintiff’s failure to file the proper motion. (09/11/23 Minute Order.)

            On September 14, 2023, Plaintiff filed a motion to set aside dismissal. On October 4, 2023, Defendant filed an Opposition. On October 9, 2023, Plaintiff filed a Reply.

MOVING PARTY POSITION

            Plaintiff alleges that the clerk at the law offices of James Tenner failed to change the caption from Stanley Mosk courthouse to the Spring Street courthouse due to inadvertence, mistake, or excusable neglect. Plaintiff’s counsel was under the impression that Department 25 was still located at 111 N. Hill Street, Los Angeles, 90012 and the caption on the pleadings misdirected him to the Stanley Mosk courthouse. Plaintiff’s counsel asserts that he has not personally appeared in court for the past few years and was under the impression that Department 25 was still located at the main courthouse at 111 N. Hill Street, Los Angeles, California. On June 26, 2023, when Plaintiff and Plaintiff’s counsel appeared at the courthouse at 111 N. Hill Street, Los Angeles, California, they were advised that department 25 had been moved to 312 S. Spring Street, Los Angeles, California. Once they arrived at the new courthouse location at 9:00 A.M., the court dismissed the case without prejudice due to Plaintiff’s counsel’s mistake.

OPPOSITION

            Defendant argues that the court should deny Plaintiff’s motion on the grounds that Plaintiff has already re-filed the action in the form of a cross-complaint in L.A.S.C. Case No. 23STCV14637. Defendant asserts there is no prejudice because the court did not enter a judgment on the merits.

Should the Court grant Plaintiff’s motion, Defendant requests Plaintiff to pay reasonable legal fees and costs incurred in connection with the dismissal, the motion for reconsideration, and the instant motion. Defendant requests $1,850.00 in legal fees and costs. (Joyce Decl. ¶8.)   Defendant’s counsel’s hourly rate is $350.00 per hour. (Id. at ¶3.) Defendant’s counsel claims she spent two (2) hours driving to and from the hearing, one (1) hour preparing the opposition for the motion for reconsideration and charged $100 by her appearance attorney, Justin Otten, to appear at the hearing on September 11, 2023, (1) hour preparing this opposition and anticipates spending one (1) hour at the hearing. (Id. at ¶5-7.)

REPLY

            Plaintiff reiterates his inadvertence in failing to attend the hearing. Plaintiff asserts that on June 23, 2023, attorney Brigid Joyce filed case number 23STCV14637 in Los Angeles Superior Court, citing the same construction agreement that is the subject of this lawsuit for thirty months. Plaintiff asserts it had no other choice but to timely file an answer in that case and file a cross complaint to preserve its rights in the case. Plaintiff argues that it is a miscarriage of justice for the case to be delayed for another two years while it has been delayed for 30 months in this court.

REQUEST FOR JUDICIAL NOTICE

Defendant requests that the Court take judicial notice of the cross-complaint in L.A.S.C. Case No. 23STCV14637.

Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (d)).  

ANALYSIS

I.          Motion to Set Aside Dismissal  

A.        Legal Standard

Code of Civil Procedure¿§ 473(b) provides for mandatory and discretionary relief from dismissal.¿ “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 through his or her mistake, inadvertence, surprise, or excusable neglect.”¿¿CCP § 473(b). ¿¿Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the¿answer or pleading proposed to be filed, or the application will not be granted.¿¿(Id.)¿ The court must grant relief from dismissal¿where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.¿¿(Id.)¿ In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment.¿¿(Id.)¿ “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”¿ (Id.)  

The motion is timely filed under C.C.P. § 473(b).¿¿The action was dismissed on June 26, 2023.¿ This Motion to Set Aside the Dismissal was filed on September 14, 2023, within six months after dismissal was entered, and within a reasonable time. 

Plaintiff moves for relief¿on the ground that¿dismissal was entered due to the inadvertence, or neglect of counsel.¿Plaintiffs’ counsel provides a declaration signed under penalty of perjury stating that due to Plaintiff’s counsel’s inadvertent captioning error, the hearing was captioned at Stanley Mosk instead of Spring Street and Plaintiff’s counsel did not know that Department 25 was moved to the Spring Street Courthouse after many years of practice and appearing in court, and as a result, Plaintiff’s counsel failed to make an appearance at the hearing. (Tenner Decl. ¶3-4.) Plaintiff’s counsel has sufficiently established mistake, inadvertence, or neglect to warrant setting aside the dismissal.

Defendant argues the original duplicate matter has been dismissed so Defendant may not demur on this basis in the newly filed action. The Court is not presented with a demurrer at this stage in the matter. While Defendant challenges the filing of the Cross-Complaint, Defendant is not opposing the matter based on res judicata, therefore Defendant’s opposing arguments are irrelevant.

Defendant also seeks attorney’s fees and costs in the amount of $1,850.00 against Plaintiff. Defendant’s counsel’s hourly rate is $350.00 per hour. (Joyce Decl. at ¶3.) Defendant’s counsel claims she spent two (2) hours driving to and from the hearing, one (1) hour preparing the opposition for the motion for reconsideration and charged $100 by her appearance attorney, Justin Otten, to appear at the hearing on September 11, 2023, (1) hour preparing this opposition and anticipates spending one (1) hour at the hearing. (Id. at ¶5-7.)

Defendant’s counsel’s hourly rate of $350.00 per hour is reasonable. The Court finds that the several instances of billing were reasonably incurred. Accordingly, the Court will award attorney’s fees and costs to Defendant against Plaintiff in the total amount of $1,850.00.

Therefore, Plaintiff’s Motion to Set Aside Dismissal is GRANTED. Defendant’s request for attorney’s fees against Plaintiff is GRANTED in the total amount of $1,850.00.

II.        Conclusion

            For the foregoing reasons, Plaintiff Sky Water Fire Protection, Inc.’s Motion to Set Aside Dismissal is GRANTED. Defendant’s request for attorney’s fees against Plaintiff is GRANTED in the total amount of $1,850.00.

 
Trial will be reset at the hearing.

            Moving party is ordered to give notice.