Judge Lee S. Arian, Case Number: 21STCV38758, Date: 2024-01-24 Tentative Ruling

This is an action arising from a motor vehicle accident which occurred on October 22, 2019. On October 20, 2021, Plaintiff Hermelinda Nunez (“Plaintiff”) filed a complaint against Defendants John Edward Powell and Nicolai Thomas Dressback (collectively, “Defendants”), and Does 1 to 100, alleging causes of action for: (1) motor vehicle and (2) general negligence.

On November 4, 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 April 5, 2023 Final Status Conference (“FSC”) and April 19, 2023 trial date in this action.

On April 5, 2023, the FSC occurred, which was not called for hearing, and the Court noted that no proof of service had been filed. (04/05/23 Minute Order.) There 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 parties.” (04/05/23 Minute Order.) The Court’s April 5, 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).” (04/05/23 Minute Order.) The Court vacated the FSC. (04/05/23 Minute Order.)

On April 19, 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.” (04/19/23 Minute Order.) The Court ordered the complaint dismissed without prejudice pursuant to CCP Section 581(b)(3). (04/19/23 Minute Order.) Also, on April 19, 2023, the Court entered an order of dismissal which dismissed this action without prejudice.

On September 15, 2023, Plaintiff filed and served the instant unopposed motion to vacate this Court’s April 19, 2023 order dismissing this action (the “Motion”). The Motion is made on the grounds that dismissal of this action occurred due to attorney mistake, inadvertence, surprise, and/or excusable neglect.

The proof of service as to the Motion indicates that the Motion was served on Defendants John Edward Powell and Nikolai Thomas Dressback by first-class mail on September 14, 2023. Plaintiff has yet to file a proof of service as to service of the summons and complaint on Defendants.

“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).)

David Issapour (“Issapour”), Counsel for Plaintiff, declares that he did not appear at the FSC or trial date due to mistake, inadvertence, surprise, and/or excusable neglect. (Issapour Decl., ¶ 8.) Counsel states that he did not appear at the hearings due to a calendaring mistake. (Issapour Decl., ¶ 8.) Counsel attests that Plaintiff should not be penalized for his mistake. (Issapour Decl., ¶ 9.) Counsel requests that the Motion be granted so that Plaintiff has his day in Court and is not prejudiced by his mistake. (Issapour Decl., ¶ 20.)

The Court finds that counsel 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, citations omitted.) 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).

Defendants have not yet been served with the summons and complaint.[1] Thus, Defendants will not be prejudiced by the granting of the Motion. The Motion does not request any substantive relief against Defendants.

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 April 19, 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] Or, perhaps more accurately, the Court has no information that they have been served, as there are still no proofs of service that have been filed.