Judge Lee S. Arian, Case Number: 21STCV36093, Date: 2024-02-01 Tentative Ruling

This is an action arising Plaintiff Edgar Castellanos Rodas (“Plaintiff”) sustaining injuries due to a part of a chimney falling on his neck and back. On September 30, 2021, Plaintiff filed a complaint against Defendants David Kokakis (“David”), Elicia Castaldi Kokakis (“Elicia”)[1], and DOES 1 to 50, alleging a single cause of action for negligence/negligence per se.

On October 27, 2021, a PI General Order was mailed to Plaintiff’s counsel which states that “Plaintiff(s) shall serve the summons and complaint in this action upon defendant(s) as soon as possible but no later than three years from the date when the complaint is filed.” (See Standing Order re: Personal Injury Procedures, Central District at ¶ 3.) The PI General Order set forth the March 16, 2023 Final Status Conference (“FSC”) and March 30, 2023 trial dates in this action.

On July 15, 2022, an Amendment to Complaint was filed which identified Saul Corea Monchez (“Monchez”) as DOE 1.

On February 28, 2023, Plaintiff filed a proof of service indicating that Defendant Monchez was served with the summons, complaint, and amendment to complaint on February 21, 2023.

On March 16, 2023, the FSC occurred, which was not called for hearing, and the Court stated that were no appearances for either side at the FSC and there was no “communication with the Court as to why there [were] no appearances by [c]ounsel or [p]arties.” (03/16/23 Minute Order.) The Court’s March 16, 2023 minute order stated that “[i]f there is no appearance at the trial the Court may dismiss the case pursuant to CCP Section 581(b)(3).” (03/16/23 Minute Order.) The Court vacated the FSC. (03/16/23 Minute Order.)

On March 30, 2023, this action was called for non-jury trial and there were “no appearances by, or for any party, nor any communication with the Court as to why there [were] no appearances.” (03/30/23 Minute Order.) The Court ordered the complaint dismissed without prejudice pursuant to CCP Section 581(b)(3). (03/30/23 Minute Order.) Also, on March 30, 2023, the Court entered an order of dismissal which dismissed this entire action without prejudice.

On August 23, 2023, Plaintiff filed and served the instant unopposed motion to vacate this Court’s March 30, 2023 order dismissing this action (the “Motion”). The Motion is made on the grounds that dismissal of this action occurred due to the mistake, inadvertence, and neglect of Plaintiff’s counsel.

The proof of service as to the Motion indicates that the Motion was only served on Defendant Monchez. The Motion was not served on Defendants David and Elicia. In fact, Plaintiff has yet to file a proof of service indicating that Defendants David and Elicia have been served with the summons and complaint. While Plaintiff indicates that Defendants David and Elicia “were never located so they could not be served with the summons and complaint” (Motion, 3:3-5), Plaintiff has not requested to serve such parties via publication or other means to afford notice of this action.

“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.)

Code Civ. Proc. § 473(b) also contains a mandatory relief provision. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.) “[T]he court shall, 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.” (Ibid.) “If the prerequisites of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.” (Ibid.)

“Whenever relief is granted based on an attorney’s affidavit of fault, the court shall direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties, in addition to whatever additional fees are authorized by subdivision (c), of Code Civ. Proc. § 473.” (J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1491.) Whenever the court grants relief from a dismissal based on any grounds in Code Civ. Proc. § 473, the Court may: (1) impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party; (2) direct that an offending party pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund; or (3) grant other relief as is appropriate. (Code Civ. Proc., § 473, subd. (c)(1)(A)-(C).)

Counsel for Plaintiff, Alex D. Guerrero (“Guerrero”), states that he takes full and complete responsibility for not appearing at either the FSC or the trial date as neither the FSC nor trial date was on his calendar. (Guerrero Decl., ¶ 5.) Counsel states that as the handling attorney, it was absolutely his responsibility to ensure that his calendar was up to date. (Id.) Counsel did not realize the case had been dismissed until August 23, 2023. (Id., ¶ 6.) Counsel attests that the dismissal is completely his fault. (Id., ¶ 7.) Counsel requests that the dismissal be set aside due to his mistake, inadvertence, and/or neglect. (Id.)

The Court finds that Plaintiff has shown that the dismissal of this action was due to counsel’s mistake and inadvertence in failing to properly calendar this matter. Calendaring errors are deemed excusable. (Flores v. Board of Supervisors (1970) 13 Cal.App.3d 480, 483.) The Court finds that the Motion is also timely. Plaintiff has shown grounds for discretionary and mandatory relief under Code Civ. Proc., § 473, subd. (b).

Although Defendants David and Elicia have not yet been served with the summons and complaint, the Court does not find that Defendants David and Elicia will be prejudiced by the granting of the Motion. The Motion does not request any substantive relief against Defendants David and Elicia.

As to the issue of payment of reasonable compensatory fees and costs to opposing parties, the Court need not impose payment of such fees and costs due to Plaintiff showing a basis for discretionary relief. (J.A.T. Entertainment, Inc. v. Reed, supra, 62 Cal.App.4th 1485, 1491.)

The Court GRANTS Plaintiff’s motion to vacate this Court’s March 30, 2023 order of dismissal.

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 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.

Hon. Lee S. Arian

Judge of the Superior Court

[1] The Court refers to Defendants David Kokakis and Elicia Castaldi Kokakis by their first names to avoid confusion given that the parties share a common last name. The Court does not intend any disrespect by referring to the parties by their first names. The Court does so for purposes of clarity.