Judge Lee S. Arian, Case Number: 22STCV0339, Date: 2024-11-07 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV0339, Date: 2024-11-07 Tentative Ruling

Case Number: 22STCV0339 Hearing Date: November 7, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO VACATE

Hearing Date: 11/7/24¿

CASE NO./NAME: 22STCV30339 PORTIA KANEABDULLAH vs AYSIA MONET RANDALL, et al.

Moving Party: Plaintiff

Responding Party: Unopposed

Notice: Sufficient

Ruling: GRANTED

Background

On September 16, 2022, Plaintiff filed the present case. On June 7, 2024, Plaintiff filed a notice of settlement, stating that the entire case had been settled. The Court set an OSC re dismissal for September 18, 2024. On that date, no one appeared nor did anyone file any declaration regarding the status of the settlement. Left with no appearances and no good cause shown for the action to remain active, the Court, on its own motion, dismissed the matter.

Plaintiff’s counsel asserts that he intended to appear and inform the Court that the matter had not yet settled and that Plaintiff wished to set a trial date for late 2025. However, due to a calendaring error, specifically a mis-entry in the appearing attorney’s calendar, counsel did not appear. Plaintiff now moves the Court to vacate its September 18, 2024, dismissal.

Discussion

Section 473, subdivision (b) states in pertinent part: “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.... Notwithstanding any other requirements of this section, the 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.” (Italics added.)

Section 473, subdivision (b), provides for two distinct types of relief. “Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against” a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,” the court shall vacate any “resulting default judgment or dismissal entered.” The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616.) ¿¿

To gain the statutory benefits, a party or legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”¿(Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 (Rappleyea).

“The¿mandatory¿relief provision of section 473(b) is a “narrow exception to the discretionary relief provision for default judgments and¿dismissals.” [Citation.] Its purpose “‘was to alleviate the hardship on parties who¿lose their day in court¿due solely to an inexcusable failure to act on the part of their attorneys.’” [Citation.] An application for¿mandatory¿relief must be filed within six months of entry of judgment and be in proper form, accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. [Citation.] The defaulting party “must submit sufficient evidence that the default was actually caused by the attorney's error. [Citation.] ‘If the prerequisites for the application of the¿mandatory¿relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’” [Citation.]” (Henderson v. Pacific Gas & Electric Co.¿(2010) 187 Cal.App.4th 215, 226.)

All requirements for mandatory relief have been met. The dismissal occurred on September 18, 2024, and the motion was filed on October 8, 2024, within the six-month deadline. Dismissal is a type of court order that falls under the narrow exception for mandatory relief. The motion includes counsel’s declaration attesting to his mistake, and the court dismissed the case due to this error—specifically, counsel’s failure to inform the court that the settlement was no longer in effect and that the parties intended to proceed with litigation. Thus, the motion is granted. A Trial Setting Conference is hereby scheduled for November __, 2024, at 8:30 a.m.

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.