Judge Lee S. Arian, Case Number: 22STCV08825, Date: 2024-08-16 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV08825, Date: 2024-08-16 Tentative Ruling

Case Number: 22STCV08825 Hearing Date: August 16, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO VACATE

Hearing Date: 8/15/24

CASE NO./NAME: 22STCV08825 EDGAR ELIAS MENDEZ XON vs TERRA BELLA PROPERTY MANAGEMENT et al.

Moving Party: Plaintiff

Responding Party: Unopposed

Notice: Sufficient

Ruling: MOTION TO VACATE IS GRANTED

Background

On March 11, 2022, Plaintiff’s counsel filed a Complaint in the above action, naming Terra Bella Property Management, Inc. (herein "TBPM") as a Defendant. However, subsequent investigation and discovery revealed that TBPM was not involved with the subject premises. Consequently, Plaintiff's counsel filed several Doe amendments naming various real estate companies bearing the Terra Bella name, all of which turned out to be unrelated to the subject property. On June 17, 2024, at a hearing for an Order to Show Cause Re: Dismissal for Failure to File Entry of Default / Alternatively Trial Setting Conference, the Court, after conferring with the parties, ordered the case dismissed without prejudice. Following discussions with Plaintiff’s uncle and through independent investigation, Plaintiff’s counsel states that he has identified the correct entity defendants relating to the subject premises: (1) 922 N. Summit, LLC, and (2) Terra Bella Property Management, Inc. Defendant now moves the court to vacate its order for dismissal on the basis that the dismissal was entered as a result of counsel’s excusable neglect in identifying the correct defendant(s) necessary to prosecute this case. No opposition was filed.

Legal Standard

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.)

“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.)

Discussion

The Court finds all the requirements for mandatory to have been met. First, the motion was filed on July 26, 2024, within the six-month deadline from when dismissal was entered on June 17, 2024. Second, the Court examined counsel's declaration and determined that counsel alleged a legitimate reason for the failure to avoid dismissal. It was based on a combination of a convoluted corporate history concerning the subject premises, numerous entities bearing similar names within the industry and counsel’s neglect in conducting a diligent investigation to locate the correct entity within two years of the case being filed. The Court finds that a combination of surprise related to the complexity of identifying the correct defendant and neglect in conducting a diligent investigation led to the dismissal of this case. Thus, the court GRANTS the present motion and vacates its June 17, 2024 decision to dismiss the matter.

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.