Judge Lee S. Arian, Case Number: 19STCV43811, Date: 2024-06-28 Tentative Ruling

Judge: Lee S. Arian, Case: 19STCV43811, Date: 2024-06-28 Tentative Ruling

Case Number: 19STCV43811 Hearing Date: June 28, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION FOR RELIEF FROM DISMISSAL

Hearing Date: 6/28/24

CASE NO./NAME: 19STCV43811 KARLA GOMEZ et al. vs AMANUEL EDISON

Moving Party: Plaintiffs

Responding Party: Unopposed

Notice: Sufficient

Ruling: MOTION FOR RELIEF FROM DISMISSAL IS GRANTED

Background

On May 21, 2021, Plaintiffs filed a Notice of Settlement of Entire Case. On December 20, 2021, the Court signed the proposed orders for minor’s compromise submitted for all three minor plaintiffs, Guillermo Vergara, Kailene Gomez, and Henisis Leon. An Order to Show Cause Re: Proof of Deposit and Dismissal was scheduled for August 2, 2023. The OSC was continued and advanced several times with a final hearing date set for January 26, 2024, in Department 1. Plaintiffs' then-counsel, Nare Kupelian, did not appear for the hearing, and the Court entered an order dismissing the entire case.

On May 29, 2024, Plaintiffs moved the Court to vacate the order dismissing the case because a blocked account for minor Guillermo Vergara was not able to be opened and therefore Vergara cannot receive his portion of the settlement. Plaintiff argues that Plaintiff’s prior counsel’s non-appearance was due to inadvertence, surprise, and excusable neglect in failing to properly calendar the January 26, 2024, OSC. No opposition was filed.

Motion for Relief

“It is … well established that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.”¿ (Frank E. Beckett Co. v. Bobbitt¿(1960) 180 Cal.App.2d Supp. 921, 928.)¿¿

Section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.¿ Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Ibid., internal citations and quotation marks omitted, quoting CCP § 473, subd. (b).)

An application for relief under Code of Civil Procedure section 473, subdivision (b) must be made within a reasonable time and in no case, exceeding six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (CCP § 473, subd. (b).)¿¿

Mandatory Relief

The mandatory portion of section 473 requires the court to, “whenever 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).) A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

Discretionary Relief

CCP 473(b) provides “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. 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 proceeding was taken.”

Discussion

Under the facts of this case, Plaintiffs’ mother was in the process of opening blocked accounts for the minors to facilitate the deposit of the settlement amount. However, Plaintiffs’ attorney, Nare Kupelian, due to a calendaring error, did not attend the Order to Show Cause Re: Proof of Deposit and Dismissal, and the case was dismissed by the Court. As a result, minor Plaintiff Vergara was not able to open a blocked account in time to receive funds from the settlement. This present motion is timely as the case was dismissed on January 26, 2024, and the present motion to set aside was filed on May 29, 2024, within the six-month deadline for a motion for relief.

However, mandatory relief is improper in this instance as attorney Nare Kupelian did not file a declaration attesting to her mistake or inadvertence. Although Attorney Angella S. Farokhzad filed a declaration, Farokhzad was not the attorney who committed the mistake that led to the dismissal and therefore Farokhzad’s declaration does not meet the requirement for mandatory relief.

The Court finds that circumstances justify the issuance of discretionary relief. First, minor Plaintiff Vergara will be prejudiced by not receiving his portion of the settlement if the dismissal is not vacated to allow him to open a blocked account. Second, the OSC was initially scheduled for August 2, 2023, in Dept. 27, then continued to November 3, 2023, in Dept. 27, continued again to January 29, 2024, in Dept. 1, and then advanced to January 26, 2024. Given the multiple continuances and advancements of the OSC, the Court finds Plaintiff’s prior counsel’s calendaring error understandable. Although no proof of deposit was filed with the moving papers, the Court finds this excusable as the case was dismissed, and no such proof can be acquired. Furthermore, no opposition was filed alleging prejudice. Thus, the Court finds good cause for relief and GRANTS the present motion.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.