Judge: Lee S. Arian, Case: 23STCV20136, Date: 2025-02-06 Tentative Ruling

Case Number: 23STCV20136    Hearing Date: February 6, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 5, 2024, the Court found that Plaintiff never served Defendants Mark F. Tunnel, Pablo N. Basora, and Jessica A. Lindsey with the Complaint and dismissed the Complaint on that basis.  The action was filed on June 21, 2022. Under Code of Civil Procedure section 583.420, the Court may dismiss an action if service is not completed within two years after commencement.

Plaintiff's counsel filed a declaration stating that on December 21, 2023, service of process was completed on Jessica A. Lindsey, a resident of New York, by certified mail with return receipt. (CCP § 415.40.) Plaintiff attached a copy of the signed returned receipt form as Exhibit A. Counsel further states that he was in the process of transitioning between law firms and mistakenly believed his paralegal from his former law firm had filed proof of service for Jessica A. Lindsey. As a result, he failed to file the proof of service as requested by the Court on June 24, 2024. Furthermore, counsel states that he intends to seek dismissal of Defendants Mark F. Tunnel and Pablo N. Basora if the Court is inclined to grant the motion.

"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.’” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 226.)

Here, all requirements for mandatory relief have been met for Plaintiff’s complaint against Defendant Lindsey. First, the dismissal falls within the narrow exception for mandatory relief. Second, Plaintiff's counsel filed an affidavit attesting to his mistake. Third, the motion is timely. Fourth, the dismissal was caused by the attorney's error. Fifth, counsel, in his declaration, seeks only to preserve Plaintiff’s complaint against Defendant Lindsey, who had been served. Accordingly, the motion is granted in part as to Plaintiff’s complaint against Defendant Lindsey. Defendants Mark F. Tunnel and Pablo N. Basora remain dismissed.

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’s 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.