Judge: Lee S. Arian, Case: BC709971, Date: 2024-03-07 Tentative Ruling

Case Number: BC709971    Hearing Date: March 7, 2024    Dept: 27

Complaint filed: 6/13/18

   

Hon. Lee S. Arian   

Department 27   

Tentative Ruling   

   

Hearing Date:                3/7/2024 at 1:30 p.m.   

Case No./Name:          BC709971/RONALD HILLMAN ET AL VS CITY OF LOS ANGELES ET AL

Motion:                              PLAINTIFF’S MOTION TO SET ASIDE/VACATE DISMISSAL

Moving Party:                 Plaintiff 

Responding Party:      Defendant Department of Water and Power of the City of Los Angeles  

Notice:                                Sufficient   

  

Ruling:                               PLAINTIFF’S MOTION TO SET ASIDE/VACATE DISMISSAL IS DENIED.

  

Background

 

Plaintiff filed the original complaint on June 13, 2018. The Final Status Conference (FSC) and Trial date was set for March 13, 2023. Following Plaintiff's death, Plaintiff’s Counsel, Mr. Yoon Kim, filed an ex-parte motion to amend the complaint and to continue the trial date. The ex-parte was heard on March 13, 2023, and the Court allowed the amendment and continued the FSC date to May 1, 2023, and trial date to May 15, 2023.  The case was dismissed on May 15, 2023, when Plaintiff Sarah Hillman, for herself and as the successor-in-interest for Ronald Hillman, and her counsel failed to appear for trial, having failed to appear for the May 1 FSC.

Mr. Kim alleges that after the March 13, 2023, ex-parte hearing, he promptly directed his then-paralegal to note the new trial and FSC dates, along with any associated deadlines. Despite these instructions, the paralegal did not calendar the dates. Consequently, he forgot to attend both the FSC and the trial, leading to the dismissal of the case on May 15, 2023. Plaintiff now moves the court to set aside the dismissal entered on May 15, 2023, due to Mr. Kim’s mistake, negligence or inadvertence.

In the opposition, Defendant argues that Plaintiff's failure to attend the FSC and trial was not due to negligence, mistake, or inadvertence. Instead, Mr. Kim was fully informed about both the FSC and the trial date. Defense counsel declared that she sent numerous emails regarding the FSC and trial dates to Mr. Kim and his assistants, in addition to multiple voicemails regarding the same. Plaintiff did not submit a reply to challenge Defendant's contentions.

 

 Legal Standard 

 

The discretionary relief provisions of Code of Civil Procedure section 473, subd. (b) provide in relevant 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. 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, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” 

 

The mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b) apply specifically to defaults, default judgments, and dismissals, and provide in relevant part: 

 

“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 . . . 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.”

 

The plain language of the statute makes clear that the Court must decide whether or not the dismissal of the action was caused by attorney mistake, inadvertence, surprise or neglect as opposed to actions of the client or an intentional decision. (Todd v. Thrifty Cmp. (1995) 34 Cal. App. 4th 986, 991 -992; Graham v. Beers (1994) 30 Cal. App. 4th 1656,1660; Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal. App. 4th 613, 622-623.)

Discussion 

 

Plaintiff argues that the dismissal should be vacated due to Plaintiff counsel's mistake, inadvertence, or negligence. Mr. Kim asserts in his declaration that his law firm experienced a high turnover of paralegals. Following the March 13, 2023, ex-parte hearing for leave to amend and to continue the trial, he promptly instructed his then-paralegal to calendar the new trial date of May 15 and the new FSC date of May 1, along with any related deadlines. (Kim Decl. ¶ 5.) Despite the instruction, Plaintiff’s counsel’s then-paralegal failed to calendar the dates. (Id.) Because the trial date, the FSC, or any related dates were never put into counsel’s calendar as instructed, he did not attend the FSC or the trial. (Id., ¶ 6.)

Plaintiff’s request does not fit into the mandatory set aside provision because it was not made within 6 months.  Accordingly, any set aside is at the discretion of the Court.

The court finds Plaintiff's argument for set aside unpersuasive. During Plaintiff’s March 13, 2023 ex-parte hearing, Plaintiff's counsel was notified by the court that the Final Status Conference (FSC) was rescheduled to May 1 and the trial date to May 15, 2023, which was less than two months from the original date.  It is unclear why it took almost a year to raise this issue with the Court.   Furthermore, Defendant introduced numerous pieces of evidence demonstrating that defense counsel provided notice to Plaintiff's counsel of the FSC and trial date. On March 21, 2023, Defense Counsel Deborah Dorny emailed Plaintiff's counsel, Mr. Kim, to explore a possible resolution before the FSC scheduled for May 1, 2023. (Dorny Decl., ¶¶ 9-10, Exh. B, C). On April 17, 2023, an email was sent to Mr. Kim inquiring into his intentions regarding the case, with a reminder about FSC in the following week. (Id., ¶ 11, Exh. D.) From March to May 2023, Defendant left several telephone messages for Mr. Kim, and his assistant, to discuss the upcoming FSC and trial. (Id., ¶ 15.)

Defendant also attempted to work with Mr. Kim on stipulations for the upcoming FSC and trial in May 2023.. On April 25, 2023, Defendant inquired to Plaintiff's counsel about any interest in complying with the FSC orders and preparing joint documents. (Id., ¶ 12, Exh. E.) On the same day, Defendant sent Mr. Kim a list of Motions in Limine intended to be filed and asked for stipulations on any issues raised. (Id., ¶ 13, Exh. F.)

Emails were not only sent to Mr. Kim but also to his assistants. After Plaintiff's counsel failed to show for the FSC on May 1, a Notice of Ruling was served by email to Plaintiff's counsel and his assistants. (Id., ¶ 5, Exh. A.) On May 8, 2023, Defendant served Mr. Kim and his assistants with clients' Trial Binders and Exhibits. (Id., ¶ 14, Exh. G.) No rejection emails were received in response to defendant’s numerous email notifying Plaintiff of the FSC and trial date. In fact, Defendant have corresponded with Mr. Kim using that exact email as late as March 10, 2023. (Id., ¶ 16, Exh. H.)

Plaintiff was given an opportunity to address the evidence presented by Defendant, but no reply brief was filed. Based on the evidence presented, the Court finds that Plaintiff’s counsel was aware of the FSC and trial date, and his failure to attend the FSC on May 1, 2023 and trial on May 15, 2023 that led to the dismissal of the case was not simply due to the mistake raised as the basis for a set aside, i.e ,the failure of counsel’s paralegal to correctly calendar the FSC and trial.  Thus, Plaintiff's Motion to Vacate Dismissal is DENIED.

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.