Judge: Lee S. Arian, Case: 20STCV34954, Date: 2025-02-10 Tentative Ruling

Case Number: 20STCV34954    Hearing Date: February 10, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 14, 2020, Plaintiff filed this case. Plaintiff has been attempting to obtain a default judgment but has been unsuccessful. On April 26, 2024, Counsel for Plaintiff represented to the Court that additional time was needed to submit the default judgment. The Court continued the hearing to August 22, 2024, and ordered that if no default judgment was submitted, Counsel must file a declaration addressing the delay and explaining why sanctions should not be imposed two court days before the next hearing.

On August 22, 2024, Plaintiff did not appear at the hearing. The Court noted that no default judgment or declaration had been filed as ordered on April 26, 2024. As a result, the Court dismissed the case without prejudice. This dismissal was pursuant to CCP §§ 581(g), 583.410, and California Rules of Court, rule 3.110(h).

Plaintiff now moves the Court to correct judgments and/or orders due to clerical error and seeks an order nunc pro tunc setting aside the dismissal.

The Court did not dismiss this case due to clerical error. On April 26, 2024, the Court made clear that Plaintiff was required to file a new default judgment, but no judgment was filed prior to the August 22 hearing. Additionally, this case was filed on September 14, 2020, more than four years ago. Under CCP § 583.410 and CCP § 583.420, the Court has discretion to dismiss a case if it is not brought to trial within two years or three years. The Court exercised this discretion at the August 22, 2024, hearing.

A nunc pro tunc order is used to correct clerical errors to reflect what was actually decided by the Court at an earlier time but was incorrectly recorded, but this is not the case here.

Plaintiff also moves the court to vacate the dismissal based on discretionary relief.

CCP § 473(b) allows a court to vacate a prior order upon a showing that the order was entered due to a party’s mistake, inadvertence, surprise, or excusable neglect. Additionally, the motion “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” The terms mistake, inadvertence, surprise, and excusable neglect which warrant relief under Code of Civil Procedure § 473(b) are defined as follows:  

        Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Citation] Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ [Citation]  (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) 

Plaintiff’s counsel declares that on April 26, 2024, the Court held an Order to Show Cause hearing regarding the status of the default judgment. Counsel of record for Plaintiff was unavailable, and a special appearance attorney appeared on counsel of record’s behalf. The Court continued the matter to August 22, 2024. However, the special appearance attorney did not send notice of the future date, and the date was never properly calendared. As a result, counsel missed the hearing. Plaintiff argues that the failure to appear was the result of mistake, inadvertence, or surprise and that a reasonably prudent person might have made the same error.

The Court is not persuaded for several reasons. First, the Court did not dismiss the case due to counsel’s non-appearance. The case was dismissed because Plaintiff was required to file a new default judgment, but no judgment was filed. Nothing in counsel’s declaration states that the Court’s directive to file a default judgment was not communicated to counsel.  Second, on April 26, 2024, Plaintiff’s counsel represented to the Court that additional time was needed to submit the default judgment. Even if the special appearance attorney failed to provide notice of the continued hearing date, a prudent attorney would have anticipated that the Court would set a deadline for submitting the default judgment and would have checked the docket for that deadline. A prudent attorney would not assume that there was an open-ended deadline to file a default judgment in a case that is over four years old, particularly given the Court’s prior practices.

Accordingly, the motion is denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.