Judge Lee S. Arian, Case Number: 22STCV29692, Date: 2024-07-16 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV29692, Date: 2024-07-16 Tentative Ruling

Case Number: 22STCV29692 Hearing Date: July 16, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27¿

MOTION TO VACATE

Hearing Date: 7/16/24¿¿

CASE NO./NAME: 22STCV29697 EVEREST NATIONAL INSURANCE COMAPNY vs M2 CONCRETE PUMPING & CATALINA PACIFIC ¿

Moving Party: Plaintiff Everest National Insurance Company

Responding Party: Defendant Catalina Pacific Concrete Company

Notice: Sufficient¿¿

Ruling: MOTION TO VACATE IS GRANTED

Background

On August 29, 2022, Plaintiff Hector Hipolito filed a personal injury case arising out of a construction site incident. On September 12, 2022, Everest National Insurance Company (“Everest”) filed the present Worker’s Compensation subrogation claim against Defendants M2 Concrete Pumping and Catalina Pacific Concrete Company. On August 22, 2023, the two cases were deemed related, but they had separate trial dates. The present matter was set for trial on March 11, 2024, at 8:30 a.m. On March 11, 2024, Plaintiff’s counsel did not appear for trial, and the case was subsequently dismissed without prejudice. Plaintiff now moves the Court to vacate the dismissal.

In the moving papers, Plaintiff’s counsel filed a declaration stating that in December 2023, it was clear that the Hipolito matter would not be ready for trial on February 26, 2024; therefore, the parties agreed to continue the trial date. Everest's counsel was involved in selecting the new trial date and was included in the written stipulation to continue the trial. As such, when the new trial date was set, counsel dropped the March 11, 2024, trial date for Everest and entered the new trial date on his calendar. Further, counsel also served the parties with a Notice of Unavailability from February 29, 2024, through March 14, 2024.

On or about March 9, 2024, counsel for Plaintiff Hipolito contacted Everest's counsel, informing him that the Everest matter remained on the Court’s calendar for March 11, 2024. Because Everest's counsel was in Maine, he reserved LA CourtConnect to make an appearance for the “Non-Jury Trial.”

On March 11, 2024, Everest's counsel attempted to appear telephonically; however, due to connectivity issues, he was only able to speak with the clerk at 8:41 a.m. During this conversation, the clerk informed counsel that Defense counsel had appeared in person at the Court and the Everest matter had been dismissed without prejudice pursuant to CCP § 581(b)(3).

Legal Standard

“It is … well established that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.”¿(Frank E. Beckett Co. v. Bobbitt¿(1960) 180 Cal.App.2d Supp. 921, 928.)

Section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) “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.’” (Ibid., internal citations and quotation marks omitted, quoting CCP § 473, subd. (b).)

The mandatory portion of section 473 requires the court to vacate a dismissal “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 ... unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief. (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

An application for relief under Code of Civil Procedure section 473(b) must be made within a reasonable time and in no case, exceeding six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought. (CCP § 473, subd. (b).)

Discussion

Plaintiff requests mandatory relief under CCP § 473. Plaintiff has met the threshold requirements for mandatory relief. First, the court order at issue is a dismissal. Second, the Motion was filed within the 6-month deadline, as the dismissal was entered on March 11, 2024, and the current Motion to Vacate was filed on May 31, 2024. Third, Plaintiff’s counsel filed a declaration attesting to mistake, inadvertence, or neglect that allegedly led to the dismissal.

Defendant Catalina Pacific Concrete Company filed an opposition arguing that under the 8th Amended Standing Order for Personal Injury Hub, trial must be attended in person, not electronically or over the phone. Therefore, Everest’s declaration only addressing the connectivity issue is insufficient because the Court still would have dismissed the matter even if there was no personal attendance, and Plaintiff's declaration did not address why he did not attend the trial in person.

It is true that personal attendance is required for trial pursuant to the 8th Amended Standing Order. However, the Court disagrees with Defendant’s argument that even if Plaintiff did not have a connectivity issue, the case still would have been dismissed and therefore, the case was not dismissed as a result of Plaintiff’s counsel’s mistake. Although personal attendance is required under the 8th Amended Standing Order for the Court to assess the trial binders and other documents to issue a trial transfer order, the lack of personal attendance does not necessarily lead to dismissal of the action. Had Plaintiff’s attorney been able to connect on time, the Court would have heard from counsel and entertained a continuance of the trial for Plaintiff’s attorney to attend in person. The connectivity issue did play a role in the dismissal of the present action.

The Court agrees with Defendant’s analysis that two separate actions led to the dismissal of the claim: counsel's connectivity issues and failure to appear in person. However, Plaintiff’s counsel’s declaration contains an admission of fault for both issues. Counsel declares that when the parties stipulated to continue the trial to June 10, 2024, for the Hipolito matter, counsel mistakenly thought that was also the trial date for the present case. Specifically, "Unfortunately, when the Order Continuing Trial came in, I initially noted that on my trial calendar as the new trial date. As such, the March 11, 2024, trial date in the Everest matter was allowed to drop from my calendar. This was a mistake, and it was my own doing. However, I continued ongoing discovery and preparation of the case with the mistaken belief that we had a June trial date." As a result of that calendaring error, Plaintiff was in Maine attending to the home care of his mother during March 2024, when the trial in the present case was to be held. Plaintiff was therefore unavailable to appear in person at the trial due to counsel's calendaring error. Although Plaintiff did not emphasize this calendaring error in the moving arguments and instead stressed the connectivity issue, an affidavit attesting to the mistake that led to the dismissal has been made.

The Court does not find counsel’s mistake to be a mistake of law. Rather, due to counsel’s calendaring error, counsel was in Maine and unavailable to attend the trial in person in California. As a result, Plaintiff made a last-ditch attempt to avoid dismissal by trying to attend the trial virtually. However, due to the connectivity issue, this attempt was unsuccessful, leading to the dismissal of the claim. Further, Plaintiff’s counsel in the reply attached a proposed stipulation to consolidate action to fulfill the requirement that a motion under CCP 473 must be accompanied by a copy of the answer or other pleading to be proposed to be filed therein.

Overall, the Court finds that counsel’s declaration has substantially complied with the requirement of CCP 473 and counsel has attested to the mistakes that led to the dismissal of the case. Thus, the Motion is granted.

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.