Judge Latrice A. G. Byrdsong, Case Number: 21STLC06826, Date: 2023-11-27 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 21STLC06826, Date: 2023-11-27 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STLC06826 Hearing Date: December 19, 2023 Dept: 25

Tentative Ruling

Commissioner Latrice A. G. Byrdsong

Department 25

Confidential – Court-Privileged Document

Hearing Date: Tuesday, December 19, 2023

Case Name: ANDY GONZALEZ v. ALBERTO MARTINEZ MORAN and DOES 1 to 50, inclusive

Case No.: 21STLC06826

Motion: Motion for CCP §473(b) Relief From Dismissal of Defendant and for an Order Vacating Dismissal

Moving Party: Plaintiff Andy Gonzalez

Responding Party: None

Notice: OK

Recommended Ruling: Plaintiff Andy Gonzalez’s Motion for CCP §473(b) Relief from Dismissal of Defendant and for an Order Vacating Dismissal is GRANTED. The dismissal entered March 20, 2023, is hereby vacated.

Andrew Chin, Esq. of the Law Offices of Andrew Chin remains counsel of record for Plaintiff Andy Gonzalez until a Substitution of Attorney form is filed withdrawing the attorney from representation.

Order to Show Cause Re: Failure to File Proof of Service is set for Friday, September 23, 2024, Dept. 25, Spring Street Courthouse.

BACKGROUND

On September 20, 2021, Plaintiff Andy Gonzalez (“Plaintiff”) filed this action against Defendants Alberto Martinez Moran and Does 1 to 50, inclusive, asserting causes of action for (1) motor vehicle and (2) general negligence.

The Attachment to the Second Cause of Action for General Negligence alleges that on July 4, 2020, the defendants negligently entrusted, managed, drove, and operated their motor vehicle, causing it to collide with Plaintiff’s vehicle and Plaintiff to sustain injuries.

On September 20, 2021, the clerk filed a Third Amended Standing Order, informing the parties that the trial was set for March 20, 2023.

On March 20, 2023, the Court called the matter for trial but noted no appearances by either side. Accordingly, the Court ordered the Complaint filed on September 20, 2021, dismissed without prejudice, pursuant to Code of Civil Procedure section 581, subdivision (b)(3).

On September 19, 2023 (almost six (6) months after the dismissal on March 20, 2023), Plaintiff filed the instant motion to set aside the dismissal.

No Proof of Service of Summons or opposition to the motion had been filed as of November 20, 2023.

On November 27, 2023, the Court held the hearing on the instant motion to set aside the dismissal.

The Court issued its tentative ruling denying the motion, but did not adopt it because of the following reasons:

Attorney Mitch Oviedo informs the Court that a substitution of attorney, substituting out Attorney Andrew Chin as Counsel for Plaintiff, was filed in this action. However, upon electronic review of the legal file, the Court finds that the ‘Substitution of Attorney’ that Counsel is making reference to has not yet been filed in this action, instead, it has been attached as "Exhibit B" to the Motion filed 09/19/2023. Therefore, attorney Andrew Chin remains to be Counsel for Plaintiff, and based on his failure to appear for trial on 03/20/2023, this action was dismissed based on failure of Plaintiff to Prosecute. The Court further notices there is no proof that the Defendant has yet been served with the summons and complaint in this action.

Counsel’s request to continue hearing on the instant motion to cure the defects discussed this date, and stated above, is heard and granted.

As discussed this date and to allow Attorney Mitch Oviedo to properly file a Substitution of Attorney and to file a properly executed declaration from Attorney Andrew Chin, signed under penalty of perjury, and indicating that his negligence in failing to appear at trial on 03/20/2023 caused this action to be dismissed, the Court orders hearing on the above motion continued to the date and time as indicated below.

Pursuant to the request of plaintiff, the Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) Entered 03/20/2023 scheduled for 11/27/2023 is continued to 12/19/2023 at 10:00 AM in Department 25 at Spring Street Courthouse.

Plaintiff must serve and electronically file supplemental papers addressing the deficiencies identified by the Court and discussed this date 5 (five) court days prior to 12/19/2023 (by 12/12/2023). Failure to do so may result in the Petition being placed off calendar or denied.

(Minute Order, dated November 27, 2023, pp. 1-2.)

Therefore, according to the Minute Order above, the Court continued the hearing for the instant motion to set aside the dismissal to allow (1) Attorney Mitch Oviedo to file a Substitution of Attorney form and (2) Plaintiff to file a declaration from Attorney Andrew Chin testifying under penalty of perjury that it was due to his negligence in failing to appear at trial on March 20, 2023, that caused the dismissal. As shown above, the Court ordered Plaintiff and Attorney Oviedo to file those documents by December 12, 2023.

On December 18, 2023, Andrew Chin filed a declaration in support of Plaintiff’s motion to set aside the dismissal.

However, as of December 18, 2023, no Substitution of Attorney or Proof of Service of Summons has been filed.

MOVING PARTY’S POSITION

The Court should vacate the order dated March 20, 2023, dismissing this case because Plaintiff’s former counsel failed to calendar the appropriate hearing date for the trial.

OPPOSITION

None.

REPLY

None.

ANALYSIS

I. MOTION TO RECLASSIFY CASE AS UNLIMITED

A. Legal Standard

Under Code of Civil Procedure section 473, subdivision (b) (“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.”

Relief under Section 473(b) must be brought “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).

“Section 473(b) provides for both discretionary and mandatory relief. [Citation.]” Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.

The mandatory provision states in relevant part:

[W]henever 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). “The purpose of this mandatory relief provision is to alleviate the hardship on parties who lose their day in court due to an inexcusable failure to act by their attorneys. [Citation.]” Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 723. Relief under Section 473(b) is also available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.App.3d 725.

B. Discussion

Plaintiff moves to set aside the dismissal pursuant to the mandatory provision of Section 473(b), arguing that the dismissal was the result of his “former counsel” Andrew Chin, Esq.’s (“Attorney Chin”) failure to calendar the trial date of March 20, 2023.

Attorney Chin attests to the following facts in support of the motion. On September 20, 2021, Plaintiff filed this action for personal injuries he sustained on July 4, 2020. Declaration of Andrew Chin, filed December 18, 2023 (“Chin Decl.”), ¶ 3. Plaintiff was initially represented by The Law Firm of Ian Shakramy, APC, who was responsible for filing the Complaint. Chin Decl., ¶ 4. On August 24, 2022, Attorney Chin’s law firm, the Law Offices of Andrew Chin, filed a substitution of attorney, substituting as counsel of record for Plaintiff. Chin Decl., ¶ 5. However, due to difficulties beyond his control, his law firm was unable to serve Defendant Alberto Martinez Moran (“Defendant”) before the trial date. Chin Decl., ¶ 6. “On March 20, 2023 the [case] was scheduled for Trial, [but] due to a mistake, inadvertence, surprise or neglect of staff from [Attorney Chin’s law firm], [his firm] failed to calendar the hearings dates for the [case], which included the Trial date.” Chin Decl., ¶ 7. “Unfortunately, no party appeared for the hearing as the Defendant had not been served upto [sic] that point and the Plaintiff failed to make an appearance. Chin Decl., ¶ 8. “The Court as a result, dismissed the Action against the Defendant on March 20, 2023 when no party made an appearance.” Chin Decl., ¶ 9. Chin’s law office only became aware of the hearing date after the Court dismissed the action pursuant to Code of Civil Procedure section 581, subdivision (b)(3) and sent out the notice of dismissal. Chin Decl., ¶ 10.

The Court finds that Attorney Chin’s declaration satisfies the mandatory provision of Section 473(b) and, therefore, grants the request to set aside the dismissal entered on March 20, 2023.

However, a few issues remain to be resolved for this case to move forward.

First, Attorney Chin further testifies that on September 14, 2023, Plaintiff entered into a Substitution of Attorney with law firm Domingo Oviedo, PC, which is currently handling all further litigation on this case. Chin Decl., ¶ 11.

However, upon review of court records, the Court finds no Substitution of Attorney form by Domingo Oviedo, PC, has been filed. As the Court noted the last time, the substitution of attorney form was only attached as “Exhibit B” to the Motion filed 09/19/2023.

Therefore, attorney Andrew Chin will remain counsel of record for Plaintiff until Domingo Oviedo, PC, files its Substitution of Attorney form.

Second, “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” Code Civ. Proc., § 583.210, subd. (a).

“Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” Code Civ. Proc., § 583.210, subd. (b).

Here, no Proof of Service of Summons has been filed despite this action being filed in 2021.

Accordingly, the Court will set an Order to Show Cause Re: Failure to File Proof of Service for Friday, September 23, 2024, three years after the action was commenced.

II. CONCLUSION

Plaintiff Andy Gonzalez’s Motion for CCP §473(b) Relief from Dismissal of Defendant and for an Order Vacating Dismissal is GRANTED. The dismissal entered March 20, 2023, is hereby vacated.

Andrew Chin, Esq. of the Law Offices of Andrew Chin remains counsel of record for Plaintiff Andy Gonzalez until a Substitution of Attorney form is filed withdrawing the attorney from representation.

Order to Show Cause Re: Failure to File Proof of Service is set for Friday, September 23, 2024, at 9:30 AM, Dept. 25, Spring Street Courthouse.

Moving party to give notice.