Judge: Latrice A. G. Byrdsong, Case: 21STLC08470, Date: 2024-02-22 Tentative Ruling
Case Number: 21STLC08470 Hearing Date: February 22, 2024 Dept: 25
Hearing Date: Thursday, February 22, 2024
Case Name: NICOLLEE INGUAGIATO v. JUAN FELDMAN; and IGNACIO FELDMAN
Case No.: 21STLC08470
Motion: Motion to Vacate Dismissal of First Amended Complaint
Moving Party: Plaintiff Nicollee Inguagiato
Responding Party: Unopposed
Notice: IMPROPER as there is no proof of service showing that Defendant Juan Feldman was served with the Motion to Vacate Dismissal.
Tentative Ruling: The Motion to Vacate Dismissal of the First Amended Complaint is GRANTED - CONTINGENT on Plaintiff providing a filed proof of service showing that Defendant Juan Feldman was served with the Motion to Vacate Dismissal.
Proof of service having been provided, the Motion to Vacate Dismissal is GRANTED.
AN ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE is scheduled for 05/06/2024 AT 9:30 AM IN DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE.
BACKGROUND
On November 29, 2021, Plaintiff Nicollee Inguagiato (“Plaintiff”) filed a complaint against Defendants Juan Feldman and Ignacio Feldman alleging causes of action for: (1) breach of contract, and (2) negligence and not repaying debt and monies owed. The complaint is set forth on a Form PLD-C-001 and does not contain any factual allegations.
On May 30, 2023, this action was called for non-jury trial; however, the Court took the trial off-calendar as the Court deemed the matter was not ready to proceed with trial as Plaintiff had not yet filed proof of service of summons and complaint. (05/30/23 Minute Order.) The Court set an OSC re: Failure to File Proof of Service for July 5, 2023. (05/30/23 Minute Order.)
On July 5, 2023, at the OSC re: Failure to File Proof of Service, the Court dismissed Defendant Ignacio Feldman without prejudice from the complaint pursuant to an oral request by Plaintiff’s counsel. (07/05/23 Minute Order.) On July 5, 2023, the Court entered an Order of Dismissal which dismissed Defendant Ignacio Feldman from this action without prejudice.
On August 31, 2023, Plaintiff filed the operative verified First Amended Complaint (“FAC”) against Defendants Juan Feldman and DOES 1 to 10, alleging causes of action for: (1) breach of contract, (2) breach of contract, and (3) common counts. The FAC arises from the alleged breach of contract pertaining to property management services. Also, on such date, Plaintiff filed a Substitution of Attorney form indicating that she was no longer self-represented and was now represented by Emahn Counts, Esq.
On October 4, 2023, the Court held an OSC re: Entry of Default/Status of First Amended Complaint. Plaintiff’s counsel represented to the Court that the FAC had been filed and served and the Court discharged the OSC re: Entry of Default/Status of First Amended Complaint. (10/04/23 Minute Order.) The Court set an OSC re: Failure to File Proof of Service of the First Amended Complaint for December 12, 2023, as well as set an OSC re: Filing of Defendant’s Answer for the same date.
On December 12, 2023, the Court held the OSC re: Failure to file Proof of Service of the First Amended Complaint and the OSC re: Filing of Defendant’s Answer at which there were no appearances and there was no communication from Plaintiff’s counsel of record as to why they failed to appear. (12/12/23 Minute Order.) The Court found that proof of service of the FAC had not been filed and the Court discharged the OSC re: Filing of Defendant’s Answer. (12/12/23 Minute Order.) Due to the lack of filed proof of service as to the FAC and the non-appearance of Plaintiff’s counsel, the Court dismissed the FAC without prejudice pursuant to CCP § 583.410. (12/12/23 Minute Order.)
On January 17, 2024, Plaintiff filed the instant motion to vacate the Court’s December 12, 2023 dismissal of the FAC. Plaintiff did not file a proof of service as to the motion.
MOVING PARTY POSITION
Plaintiff contends that she should not be punished for her counsel’s clerical error. Plaintiff alleges that she is entitled to equitable relief based on the grounds of mistake. Plaintiff asserts that counsel did not appear at the December 12, 2023 OSC re: Proof of Service of the First Amended Complaint because of a clerical error in not reserving counsel’s remote video appearance. As to the lack of a filed proof of service, Plaintiff argues that Defendant Juan Feldman’s counsel failed to sign the Acknowledgement of Receipt form despite his agreement to do so.
No opposition has been filed as of February 16, 2024.
REPLY
No reply has been filed as of February 16, 2024.
ANALYSIS
I. Vacating the Dismissal
A. Legal Standard
“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 or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken.” Ibid. “It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 525.
B. Discussion
In support of the motion, Plaintiff’s counsel Emahn Counts (“Counts”), declares that on July 5, 2023, he specially appeared telephonically for Plaintiff and advised the Court that he intended to substitute in as counsel and would file an amended complaint in August 2023. (Counts Decl., ¶ 3.) On August 31, 2023, Counts declares that he substituted in as counsel for Plaintiff and filed the FAC. (Id., ¶ 4.) On September 18, 2023, Defendant Juan Feldman’s counsel, Aidan Butler, Esq., notified Counts that no summons was ever issued by the Court and requested that Plaintiff provide him with a Summons, FAC, and Notice of Acknowledgement of Receipt. (Id., ¶ 5.) On September 28, 2023, the Court conformed the Summons submitted by Counts. (Id.) On September 29, 2023, Counts provided a copy of the conformed Summons to defense counsel who confirmed receipt, indicated he represented Defendant, indicated he would accept substitute service for Defendant, and indicated he would return the Acknowledgement of Receipt form within 20 days. (Id., ¶ 6; Exh. 1.) Counts states that he informed the Court of the above facts at the October 4, 2023 OSC re: Entry of Default/Status of First Amended Complaint, and the hearing was continued for Plaintiff to file an Acknowledgement of Receipt and/or Proof of Service prior to the next court hearing. (Id., ¶ 7.) Counts states that defense counsel failed to return the Acknowledgment of Receipt form. (Id., ¶ 8.)
Counts further declares that in September 2023, Plaintiff requested personal service of Defendant Juan Feldman via a registered process server who was advised by the Defendant that he has been at his vacation home in Uruguay. (Counts Decl., ¶ 9; Exh.3.) Counsel attempted to appear at the December 12, 2023 OSC date but realized that his former legal secretary, who was terminated that month, did not schedule his remote appearance through LA Court Connect (“LACC”). (Id., ¶ 10.) On December 12, 2023, Counts’s paralegal, Corey Counts, called the department clerk to inquire as to how he could appear for the court hearing but was told there was nothing the clerk could do. (Id., ¶ 11.) Corey Counts was advised that counsel would have to wait for the Court’s ruling. (Id.) Counts requests that the Court vacate the dismissal, reinstate the FAC, and set a status conference re: Proof of Service of the FAC/Summons on Defendant for 90 days out. (Id., ¶ 14.)
Paralegal Corey Counts provides a declaration in support of the motion attesting to his efforts to inquire with the Court as to how counsel could appear through LACC given his office’s inability to schedule a remote appearance through LACC. (Corey Counts Decl., ¶¶ 2-3.)
The Court finds that Plaintiff has shown that the failure of counsel to appear at the December 12, 2023 OSC was due to the mistake and inadvertence of counsel’s former legal secretary in failing to schedule a remote appearance through LACC. As to the failure of Plaintiff to file a proof of service as to the FAC, the Court finds that counsel mistakenly and inadvertently relied on, and waited on, defense counsel to return an Acknowledgment of Receipt form. Plaintiff has shown that the lack of a filed proof of service was a mistake due to “an erroneous conviction, which act, but for such conviction, would not have been done.” Salazar v. Steelman (1937) 22 Cal.App.2d 402, 409. Plaintiff has shown grounds for relief pursuant to CCP § 473(b).
However, the Court notes that Plaintiff is aware of the identity of Defendant Juan Feldman’s counsel yet failed to serve the motion on Defendant Juan Feldman. Plaintiff failed to file a proof of service showing that Defendant Juan Feldman was served with the instant motion.
As such, the Court GRANTS Plaintiff’s Motion to Vacate Dismissal of the First Amended Complaint CONTINGENT on Plaintiff presenting a filed proof of service, either at or before the hearing on the motion, showing that Defendant Juan Feldman was served with the motion.
II. Conclusion
The Court GRANTS Plaintiff’s Motion to Vacate Dismissal of the First Amended Complaint CONTINGENT on Plaintiff presenting a filed proof of service, either at or before the hearing on the motion, showing that Defendant Juan Feldman was served with the motion.
The Court sets the following hearing date:
AN ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE is scheduled for 05/06/2024 AT 9:30 AM IN DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE.
Moving party is ordered to give notice.