Judge Latrice A. G. Byrdsong, Case Number: 21STLC08073, Date: 2023-11-07 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 21STLC08073, Date: 2023-11-07 Tentative Ruling

Case Number: 21STLC08073 Hearing Date: November 7, 2023 Dept: 25

Hearing Date: Tuesday, November 7, 2023

Case Name: BAUM CONSTRUCTION & DEVELOPMENT, INC. v. JOHN MURPHY and DOES 1 through 50, inclusive

Case No.: 21STLC08073

Motion: Motion to Vacate Order of Dismissal

Moving Party: Plaintiff Baum Construction & Development, Inc.

Responding Party: None

Notice: OK

Tentative Ruling: Plaintiff Baum Construction & Development, Inc.’s Motion to Vacate Order of Dismissal is GRANTED. The order dated May 10, 2023, dismissing the case without prejudice, is vacated.

Trial is reset for 02/15/2024 at 8:30 a.m. in Dept. 25 of the Spring Street Courthouse.

Discovery and all other 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.

Moving Party is ordered to give notice.

BACKGROUND

On November 10, 2021, Plaintiff Baum Construction & Development, Inc. (“Plaintiff”) filed this action against Defendants John Murphy (“Murphy”) and Does 1 through 50, inclusive, asserting causes of action for (1) breach of contract – project, (2) quantum meruit – project, (3) breach of contract – design, (4) quantum meruit – design, (5) to enforce mechanics lien, (6) common count – account stated, and (7) common count – open book.

The Complaint alleges the following. Plaintiff is (and was at all relevant times) a California-licensed contractor. (Compl., ¶ 2.) On or about June 28, 2021, Plaintiff entered into a written agreement (the “Contract”) with Defendant Murphy, whereby Plaintiff agreed to perform certain scopes of work on a construction project (the “Project”) at a property in Long Beach, California, and, in exchange, Murphy agreed to pay Plaintiff “$24,402, together with additions and deductions thereto.” (Compl., ¶ 8.) Plaintiff has performed all conditions and covenants under the Contract, except as excused. (Compl., ¶ 9.) However, Murphy breached the Contract by failing to pay at least $15,402. (Compl., ¶ 10.)

On July 12, 2022, Plaintiff filed a Proof of Publication re: Service of Defendant John Murphy, informing the Court that service by publication was completed.

On August 18, 2022, Plaintiff filed a request for entry of default.

On August 18, 2022, the clerk entered a Notice of Rejection Default because, among other things, Murphy’s name on the Publication was in error; specifically, the name did not correspond to the defendant’s name on the complaint.

On September 9, 2022, Murphy filed his Answer.

On May 10, 2023, the Court called the matter for a non-jury trial, but noted that there were no appearances by or for either side and, therefore, dismissed the case without prejudice, pursuant to Code of Civil Procedure section 581(b)(3).

On October 9, 2023, Plaintiff filed the instant motion to vacate the dismissal pursuant to Code of Civil Procedure section 473(b) (“CCP section 473(b)”).

As of November 2, 2023, no opposition to the motion has been filed.

MOVING PARTY’S POSITION

Plaintiff’s failure to attend the trial was due to its counsel’s inadvertence and mistake. Counsel had overlooked the Court’s Third Amended Standing Order that was returned with the conformed Complaint. Therefore, it was not until Plaintiff’s Counsel received the Court’s minute order, stating that no parties and/or their counsel were present at the trial, that Plaintiff’s counsel learned that the trial had been scheduled. Plaintiff’s counsel inadvertently and mistakenly believed that a Case Management Conference would be scheduled and a trial date given at that time.

OPPOSITION

None.

REPLY

None.

ANALYSIS

I. MOTION TO VACATE DISMISSAL

A. Legal Standard

A party may move to set aside a dismissal pursuant to Section 473(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, emphasis added.) 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

As an initial matter, the Court finds the instant motion timely as it was filed on October 9, 2023, within six (6) months of the dismissal on May 10, 2023. (Code Civ. Proc., § 473, subd. (b) [requiring applications to set aside an order to be made within six (6) months of the order].)

Plaintiff’s counsel attests to the following facts in support of the motion. She did not appear for trial on May 10, 2023, due to her inadvertence and mistake in not seeing the Third Amended Standing Order that was returned with the conformed copy of the Complaint. (Declaration of A. Maria Plumtree, filed October 9, 2023 (“Plumtree Decl.”), ¶ 4.) The Third Amended Standing Order had the trial date. (Plumtree Decl., ¶ 6.) Most of her cases are unlimited, and usually schedule trials at Case Management Conferences. (Plumtree Decl., ¶ 8.) Therefore, she mistakenly believed that a Case Management Conference would be scheduled and a trial date given at that time. (Plumtree Decl., ¶ 8.) She was surprised when she received the Court’s minute order stating that the trial was called on May 10, 2023, and that there was no appearance by either Plaintiff or Defendant. (Plumtree Decl., ¶ 9.) After receiving the minute order, she went to One Legal, the website she used to file the Complaint, and that is when she noticed the trial date on a copy of the Third Amended Standing Order. (Plumtree Decl., ¶ 10.) Subsequently, the parties failed to settle, so she filed the instant motion to vacate the dismissal. (Plumtree Decl., ¶¶ 12-15.)

In light of Plaintiff’s counsel’s declaration showing her mistake, the Court finds it proper to grant the motion pursuant to the mandatory provision of Section 473(b).

II. CONCLUSION

Plaintiff Baum Construction & Development, Inc.’s Motion to Vacate Order of Dismissal is GRANTED. The order dated May 10, 2023, dismissing the case without prejudice, is vacated.

Trial is reset for 02/15/2024 at 8:30 a.m. in Dept. 25 of the Spring Street Courthouse.

Discovery and all other 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.

Moving Party is ordered to give notice.