Judge Lee S. Arian, Case Number: 20STCV16448, Date: 2024-07-29 Tentative Ruling

Judge: Lee S. Arian, Case: 20STCV16448, Date: 2024-07-29 Tentative Ruling

Case Number: 20STCV16448 Hearing Date: July 29, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO VACATE

Hearing Date: 7/29/24¿

CASE NO./NAME: 20STCV16448 GUSTAVO JIMENEZ vs EDER FLORES et al.

Moving Party: Plaintiff¿

Responding Party: Unopposed

Notice: Sufficient¿

Ruling: MOTION TO VACATE IS DENIED

This action stems from an incident that occurred on May 23, 2018. On April 30, 2020, Plaintiff filed the present case. On December 4, 2023, counsel for Plaintiff, Daniel Moossai, failed to appear for an Order to Show Cause Re: Dismissal. Plaintiff’s counsel alleges that he was unable to attend the hearing due to a calendaring error, and as a result of his non-appearance, the case was dismissed. On April 23, 2024, Plaintiff moved to vacate this dismissal. On July 24, 2024, the court heard the motion and tentatively denied it, but permitted counsel to file a supplemental declaration. Subsequently, on July 19, 2024, Plaintiff’s counsel submitted a supplemental declaration explaining his absence at the January 24, 2024 hearing.

On July 15, 2024, the court tentatively denied Plaintiff’s motion to vacate for three reasons. First, the motion failed to address why Plaintiff had not successfully obtained a default judgment since filing the case in 2020. This was the main reason for the court's dismissal of the case in January 2024 (7/15/24 Minute Order at p. 3). Second, the motion did not explain why Plaintiff's counsel failed to attend the January 24, 2024 hearing, another factor contributing to the case's dismissal. Third, the motion lacked a copy of a default judgment workup as required by CCP § 473(b).

The supplemental declaration addressed only Plaintiff’s counsel’s absence at the January 2024 hearing. The court noted that the non-appearance, though significant, was secondary to the failure in providing a compliant default judgment workup over four years. The primary reason for the dismissal was not due to a single oversight of missing a hearing but was largely due to the prolonged failure to submit an adequate default judgment packet. The supplemental declaration did not address this issue or provide justifications for the prolonged inability to secure a default judgment. Although Plaintiff’s counsel’s declaration did contain a paragraph stating that “counsel is prepared to file the default judgment packet against Defendant Eder Flores,” it still did not provide such a packet. Plaintiff and his counsel have purportedly been ready since 2020, yet no default judgment has been obtained. Furthermore, the failure to attach a default judgment package to the motion prior to the initial hearing was explicitly stated as one of the reasons why the court was inclined to deny the motion. And yet, again, no such package was provided. By failing to include a default judgment workup to the motion or even the supplemental declaration, Plaintiff does not demonstrate to the court that a default judgment would actually be obtained if relief were granted.

Therefore, the court maintains its tentative ruling and denies Plaintiff’s 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.