Judge Lee S. Arian, Case Number: 2OSTCV16448, Date: 2024-07-15 Tentative Ruling

Judge: Lee S. Arian, Case: 2OSTCV16448, Date: 2024-07-15 Tentative Ruling

Case Number: 2OSTCV16448 Hearing Date: July 15, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO VACATE

Hearing Date: 7/15/24

CASE NO./NAME: 20STCV16448 GUSTAVO JIMENEZ vs EDER FLORES et al.

Moving Party: Plaintiff

Responding Party: Unopposed

Notice: Sufficient

Ruling: MOTION TO VACATE IS DENIED

This action stems from an incident that occurred on May 23, 2018. On April 30, 2020, Plaintiff filed the present case. On December 4, 2023, counsel for Plaintiff, Daniel Moossai, failed to appear for an Order to Show Cause Re: Dismissal. Plaintiff’s counsel alleges that he was unable to attend the hearing due to a calendaring error, and as a result of his non-appearance, the case was dismissed. Plaintiff now moves the Court to vacate its dismissal.

The Court did not dismiss the present case due to Daniel Moossai’s non-appearance on December 4, 2023. Rather, on December 4, 2023, the Court issued a minute order stating that “There are no appearances made by or for any party this date. There is no default judgment filed on this date. On the Court's own motion, the Order to Show Cause Re: Dismissal for Failure to Enter Default/Default Judgment scheduled for 12/04/2023 is continued to 01/24/2024 at 08:30 AM in Department 27 at Spring Street Courthouse. If there are no appearances and no default judgment filed by the next hearing date, the Court may dismiss this matter pursuant to CCP § 581(g) and CCP § 583.410; Calif. Rules of Court, rule 3.110(h) and/or impose sanctions upon counsel for Plaintiff.”

Plaintiff’s counsel was notified of this ruling, and a certificate of mailing was filed on December 5, 2023. On January 24, 2024, Plaintiff did not appear for the continued Order to Show Cause Re: Dismissal for Failure to Enter Default/Default Judgment. The Court issued a minute order stating: "There are no appearances made by or for any party this date. There is no default judgment filed on this date. The Court orders the entire case dismissed without prejudice. This dismissal is pursuant to CCP § 581(g) and CCP § 583.410."

Although Plaintiff’s counsel filed the present motion within six months of the dismissal of this action and submitted a declaration attesting to his mistake, the declaration from Plaintiff’s counsel and his paralegal only addresses his non-appearance on December 4, 2023. It is silent on why counsel did not appear at the hearing on January 24, 2024. The Court did not dismiss the present case because of counsel’s non-appearance on December 4, 2023. In fact, the Court provided counsel an opportunity to prevent the dismissal by filing a default judgment and appearing at the hearing on January 24, 2024. However, counsel failed to do so, and the declarations did not demonstrate that counsel’s failure to appear on January 24 was due to mistake, inadvertence, surprise, or neglect. Therefore, the Court does not find that the case was dismissed as a result of the attorney’s mistake, inadvertence, surprise, or neglect, as claimed in counsel’s declaration.

Furthermore, this case was dismissed pursuant to CCP § 583.410 due to Plaintiff’s lack of prosecution. The case was filed on April 30, 2020, and Plaintiff has failed to obtain a default judgment for approximately four years. Counsel’s non-appearance is one factor that contributed to the dismissal of the case, but the primary reason is that Plaintiff failed to provide a compliant default judgment workup in approximately four years. The dismissal was not due to a one-time mistake, but rather due to counsel’s inability to file a proper write-up over an extended period of time. Additionally, CCP § 473(b) requires “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.” Plaintiff did not attach a copy of a proposed default judgment workup to the moving papers.

Based on the foregoing analysis, the Court denies the motion to vacate.

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.