Judge: Lee S. Arian, Case: 21STCV34329, Date: 2024-08-09 Tentative Ruling

Case Number: 21STCV34329    Hearing Date: August 9, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION TO VACATE

Hearing Date: 8/9/24¿ 

CASE NO./NAME: 21STCV34329 ALEJANDRO CASTRO vs JOSE MORALES

Moving Party: Plaintiff, in pro per,

Responding Party: Unopposed

Notice: Sufficient¿ 

Ruling: MOTION TO VACATE IS DENIED

Background

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.) 

Discussion

On September 17, 2021, Plaintiff filed the complaint. On March 7, 2023, Plaintiff filed the Proof of Service of summons.  On  July 26, 2023, Plaintiff appeared Pro Per on an Order to Show Cause Re Dismissal for Failure to Enter Default/Default Judgment.  The Court granted Plaintiff a continuance to file the default/default judgment, setting another OSC for January 18, 2024.  On January 18, 2024, Plaintiff appeared Pro Per on an Order to Show Cause Re Dismissal for Failure to Enter Default/Default Judgment.  The Court granted Plaintiff a continuance to file the default/default judgment, setting another OSC for April 18, 2024.  Plaintiff did not attend the April 18 hearing. 

On April 18, 2024, the court dismissed Plaintiff’s entire action and issued a minute order on the same day stating that “after adequate notice was given, no declaration was submitted showing cause why the case should not be dismissed for failure to enter default and lack of prosecution. Plaintiff has a duty to exercise reasonable diligence to ensure that a case is brought to trial or other conclusion within statutory time constraints. (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 70; CCP § 583.420(a)(2)(B).) California Rules of Court, rule 3.110 requires Plaintiff to obtain entry of default within 10 days after the time for service has elapsed. As this case is over two years old and no movement has been made to comply with the deadlines and timetable, as well as the Court's orders, the Court exercises its discretion and dismisses the complaint with prejudice.” (4/18/24 Minute Order.)

Plaintiff now moves the court to vacate its order, alleging that he mistakenly thought the hearing was to be held on April 19, 2024, and therefore did not attend the hearing, leading to the dismissal. However, his failure to attend is not the reason why the court dismissed the case on April 18, 2024. The minute order states that the case was dismissed because Plaintiff “failed to act with reasonable diligence.” A proof of service was filed on March 7, 2023; however, as of April 18, 2024, more than a year later, no request for default had been filed when Plaintiff is supposed to obtain entry of default within 10 days after the time for service has elapsed. And, that failure occurred despite two intervening court appearances to address the failure to file a default/default judgment.  Furthermore, Plaintiff did not file a declaration showing why the case should not be dismissed for failure to enter default and lack of prosecution despite being provided adequate notice to do so by the Court.

Additionally, CCP § 473(b) requires “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.”  In the present motion, no request for default, which has been outstanding for over a year, was attached.  Plaintiff is essentially seeking to have the Court start this process all over again with no indication that he will do what is required of him.  In any event, Section473(b) is clear and uses mandatory language: without the proposed pleading that led to the dismissal, the Court “shall” not grant the application.   

Thus, Plaintiff’s motion is denied as the court finds, based on the argument presented, it was not the party’s mistake, inadvertence, or excuse that led to the dismissal.

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 without leave.