Judge: Latrice A. G. Byrdsong, Case: 21STLC06427, Date: 2023-10-26 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STLC06427    Hearing Date: October 26, 2023    Dept: 25

Hearing Date:                         Thursday, October 26, 2023

Case Name:                             ELVIS J. TORREZ, an individual v. GL LBT LLC DBA WEST COAST TOYOTA OF LONG BEACH; WELLS FARGO BANK NATIONAL ASSOCIATION; TRAVELERS CASUALTY AND SURETY COMPNAY OF AMERICA; and DOES 1-40

Case No.:                                21STLC06427

Motion:                                   Motion to Set Aside Court’s Dismissal

Moving Party:                         Plaintiff Elvis J. Torrez

Responding Party:                   Defendants GL LBT, LLC DBA West Coast Toyota and Travelers    

Notice:                                    OK

TENTATIVE Ruling:           Plaintiff Elvis J. Torrez’s Motion to Set Aside Court’s 01/17/2023 Dismissal is GRANTED.

Trial is set for February 27, 2024 at 8:30 a.m.
Discovery and trial related deadlines continued based upon the new trial date.

 

BACKGROUND

 

On September 2, 2021, Plaintiff Elvis J. Torrez (“Plaintiff”), an individual filed a Complaint against Defendant GL LBT, LLC DBA West Coast Toyota of Long Beach; Wells Fargo Bank National Association; Travelers Casualty and Surety Company of America (“Defendants”); and DOES 1 through 40, inclusive, alleging causes of action for: (1) Violation of Consumers Legal Remedies Act, Civil Code § 1750 et seq; (2) Violation of California Business and Professions Code § 17200 et seq., Unlawful Acts or Practices; (3) Violation of Civil Code § 1632; and (4) Claim Against Surety.

 

On July 17, 2023, this Court entered an Order dismissing the complaint without prejudice. (Min. Order 7/17/23.)

 

On August 22, 2023, Plaintiff filed a Motion to Set Aside Court’s Dismissal. On October 13, 2023, Defendants GL LBT, LLC DBA West Coast Toyota of Long Beach (“WCT”) and Travelers Casualty and Surety Company of America (“Travelers”) filed an opposition to Plaintiff’s motion. On October 20, 2023, Plaintiff filed a reply to Defendants’ WCT and Travelers opposition.

 

MOVING PARTY POSITION

 

             Plaintiff moves to set aside the dismissal filed in this matter. Plaintiff argues that the parties had agreed to continue the trial and that defense counsel would relay that to the court. Plaintiff further argues that this instant motion is timely because less than six months have passed since dismissal of this case.

 

 

 

OPPOSITION

 

            In Opposition, Defendants argue that Plaintiff’s motion does not comply with the threshold requirement of showing merit to his lawsuit. Defendants also argue that Plaintiff and his lawyer made a tactical choice which they later regret. Further, Defendants argue that the Court was correct to dismiss the case because (1) Plaintiff and his counsel did not meet and confer with Defendants over trial documents; (2) the inapplicability of the belated recall issue along with the withdrawal and contradicted frame damage allegations; and (3) Plaintiff and his counsel did not appear at the trial call.

 

REPLY

 

            In reply, Plaintiff argues that the only matter before the court is whether there was a surprise or mistake that led to the dismissal of the complaint. Plaintiff asserts the mistake and surprise was that Plaintiff’s counsel believed and relied on Defendants’ counsel to tell the court they had agreed to a continuance. Further, Plaintiff argues that Defendants’ contention that Plaintiff must prove its case at this time before the court or that it was tactical choices that led to the default at issue are ridiculous and outside the scope of this matter. Plaintiff also argues that it had been conveyed to defendants’ counsel that the issue could be limited but nothing was concretely waived by either side.

 

ANALYSIS

 

I.          Motion to Set Aside Court’s Dismissal

A.                Legal Standard

Pursuant the Code of Civil Procedure (CCP), Section 473(b), 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 Code of Civil Procedure, Section 473(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.”  (CCP § 473(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.” (CCP § 473(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”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)

B.              Discussion

Here, Plaintiff Elvis J. Torrez (“Plaintiff”) moves to set aside the dismissal entered in this matter. The Court entered an Order dismissing the complaint without prejudice on July 17, 2023. Based on the date of dismissal, Plaintiff had until January 17, 2024 to file a motion to set aside the dismissal because it would be within the six (6) month limit set by statute. (CCP § 473(b).) Plaintiff, by and through his counsel of record filed the motion to set aside dismissal on August 22, 2023, which makes it timely because it was within the six (6) months required by statute.

Furthermore, Plaintiff advances the Declaration of Kasra Sadr, his counsel of record. Counsel Sadr avers that prior to July 17, 2023, which was the date for trial in this matter, he and defense counsel discussed dropping the prior damages sustained to the vehicle and only keeping the recall issue. (Sadr Decl., ¶ 5, Exhs. 1-2.) Counsel Sadr further avers that he was not able to convince Plaintiff to limit the issues and relayed that to defense counsel via email. (Id.) Counsel Sadr avers that he and defense counsel agreed to push back the trial date, that he would not have to personally appear for July 17, 2023 date since he lives in San Diego, and that defense counsel would inform the court of the parties intent to continue the trial date. (Id. at ¶ 8.) Moreover, Counsel Sadr avers that he informed defense counsel that he would call in to court so they could work together on a continuance. (Id. at ¶ 9.) Additionally, Counsel Sadr avers that on July 17, 2023, his office called the court but the court clerk would not allow him to appear telephonically. (Id. at ¶ 10.) Counsel Sadr avers that he informed defense counsel via text message that the court clerk would not allow him to appear telephonically. (Id. at ¶¶ 11-12, Exh. 5.) Counsel Sadr avers that he made a mistake in believing that defense counsel would convey to the court what was agreed upon between the parties and that he could appear telephonically because defense counsel asked for dismissal instead. (Id. at ¶¶ 13-14.)

In opposition, Defendants WCT and Travelers argue that Plaintiff’s motion should be denied for failing to comply with the threshold requirement of showing merit to his lawsuit. Specifically, Defendants cite to Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, which held that “Case law, therefore, requires the party seeking relief to accompany his notice of motion for relief with an affidavit of merits or verified pleading which sets up a valid defense.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 281-282.) Defendants contend that Plaintiff and his counsel’s declaration do not present Trial Documents, i.e., witness list, exhibit list, and jury instructions showing that Plaintiff could change the outcome if dismissal is vacated. Defendants also contend that Plaintiff has done nothing to overcome his judicial decision to proceed only on an alleged recall issue. However, the Transit Ads, Inc. case is distinguishable from this present matter. The Transit Ads, Inc. Court had dismissed a case where the Defendant initially did not file an Answer, then filed a motion to set aside the dismissal with an Answer attached that contained only denials and no affidavit or declaration of merits was filed to support the motion. In this instant case, the parties were already at the jury trial stage when it was dismissed and Plaintiff’s counsel provided a declaration/affidavit of merits to support the request for relief.

Defendants further assert that this instant motion is not premised on an accident but the intentional, tactical choice of Plaintiff and his counsel that they now regret. Defendants argue that Plaintiff (1) chose to waive all but the recall issue; (2) to not meet and confer over trial documents; and (3) to not appear for trial call. Defendants assert that the Court properly dismissed the case because of Plaintiff’s above-outlined choices.

Nonetheless, in Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, the court held that “In determining whether the attorney's mistake or inadvertence was excusable, ‘the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error.’” (Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112.) As such, Counsel Sadr demonstrates that his failure to appear telephonically at the July 17, 2023 jury trial date and belief that defense counsel would ask for a continuance was the result of mistake, inadvertence, surprise, and neglect on his part. A reasonably prudent person under the same or similar circumstances might have thought they could appear telephonically for the court trial date when they had the intention to continue the matter and that the opposing party would also seek a continuance based upon their purported agreement to do so. Counsel’s conduct and declaration submitted to the Court mandates relief from dismissal. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.)

Additionally, in reply, Plaintiff asserts that the law does not require Plaintiffs to show that there is merit to the lawsuit, but rather merit to the relief requested. Plaintiff further contends that there needs to be a defense to the lawsuit being dropped, in this instant matter, the lawsuit was dropped because Plaintiff’s counsel did not show up at the hearing. As such, Plaintiff argues that any defense must show there was merit to why Plaintiff’s counsel did not show up to the hearing and Plaintiff ‘s counsel has purported it was due to surprise and mistake. As previously discussed, Plaintiff argues that his counsel made the mistake of believing Defendants would inform the court of the parties agreed upon continuance. Plaintiff then contends that having to prove the merits of the case, underlying causes of action, testimony of parties, and why it would win the matter would be akin to a motion for summary judgment. Plaintiff’s points are well-taken. In Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, the court stated that “The policy that the law favors trying all cases and controversies upon their merits should not be prostituted to permit the slovenly practice of law or to relieve courts of the duty of scrutinizing carefully the affidavits or declarations filed in support of motions for relief to ascertain whether they set forth, with adequate particularity, grounds for relief.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 282.) As explained above, Plaintiff’s counsel submitted a declaration in support of this present motion setting forth with adequate particularity the grounds for which he is seeking relief from dismissal.

Also, Plaintiff asserts that he made no tactical choices in this matter because no final stipulation was ever reached or causes of actions ever waived as a result of the discussion regarding limiting the issues of this instant case. Moreover, Plaintiff contends that trial documents were all given to Defendants by Plaintiff’s counsel in a full binder at a prior hearing. Lastly, Plaintiff asserts that the recall and damages issues have merit  but were not addressed because Plaintiff’s counsel was not privy as to why the court dismissed this matter and none of Defendants’ subsequent emails emailed anything concerning this matter.

Therefore, the Court finds that an order setting aside the dismissal is warranted under the law because Plaintiff’s motion was timely filed and Plaintiff’s Counsel has sufficiently established mistake, inadvertence, surprise, or neglect.

II.        Conclusion

           

            Accordingly, Plaintiff Elvis J. Torrez’s Motion to Set Aside Court’s 01/17/2023 Dismissal is GRANTED.

Trial is reset for February 27, 2024 at 8:30 a.m. in Department 25 of the Spring Street Courthouse.

Discovery and all trial related deadlines to comport with the new trial date.

 Parties must comply with the trial requirements as set forth in the court's Third Amended Standing Order for Limited Civil Cases (effective February 24, 2020). 

All trial documents are to be electronically filed at least ten (10) days prior to the trial date. 

Parties should be prepared to submit a JOINT Trial Readiness Binder / Exhibit Binder, and to personally appear on the date of trial.

Counsel for the Moving party is ordered to give notice.