Judge Lee W. Tsao, Case Number: 23NWCV00160, Date: 2024-01-10 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00160, Date: 2024-01-10 Tentative Ruling

Case Number: 23NWCV00160 Hearing Date: February 20, 2024 Dept: C

Jose Manuel Fructoso Guevara Melena vs Los Angeles County Metropolitan Transportation Authority

Case No. 23NWCV00160

Hearing Date: February 20, 2024 @ 9:30 AM

Tentative Ruling

Plaintiff’s Motion to Vacate Dismissal is CONTINUED to April 23, 2024 at 9:30 a.m. in Dept. SE-C. Plaintiff shall file and serve an amended complaint within 20 days. Reduced sanctions shall be awarded when the motion is granted.

Plaintiff to give notice.

Background

This is a personal injury action involving a bus operated by Defendant Metropolitan Transportation Authority (“Defendant”). On January 27, 2022, Plaintiff Jose Manuel Fructoso Guevara Melena (“Plaintiff”) attempted to enter the bus utilizing an electric ramp. Plaintiff alleges Defendant negligently operated the electric ramp causing Plaintiff to fall and suffer severe injuries.

Plaintiff filed suit on January 17, 2023. Dismissal was entered on December 12, 2023 after Plaintiff’s counsel failed to appear for a series of case management conferences. This Motion to Vacate Dismissal was filed on January 8, 2024.

Legal Standard

“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.” (CCP §473(b).)

Discussion

In Plaintiff’s motion, Plaintiff’s counsel admits his inadvertence or mistake. Plaintiff’s counsel states that on June 6, 2023, all counsel were present for the Case Management Conference. At this proceeding the Court continued to Case Management Conference to September 13, 2023. Notice was waived by both parties. On September 13 the case was called for a second Case Management Conference. Plaintiff’s counsel did not appear due to Plaintiff’s counsel’s inadvertence and mistake by not correctly scheduling the hearing in the firm’s calendar. The Court continued the hearing to October 27, 2023.

Plaintiff’s counsel goes on to state that on or around October of 2023, Plaintiff’s counsel’s office relocated and underwent several changes in staff, including the supervising attorney for this matter. Later, on October 27, 2023, the case was called for a Case Management Conference and Trial Setting Conference. Plaintiff’s counsel again did not appear due to Plaintiff’s counsel’s original inadvertence and mistake by not correctly scheduling the initial September 13 hearing and by failing to file a Notice of Change of Address with the Court, all of which caused Plaintiff’s counsel to not be informed of the October 27 hearing. The Court on its own motion continued the Case Management Conference and Trial Setting Conference to December 12, 2023. The Court set Order to Show Cause hearings for this date as well. On December 12, 2023, the case was called for a Case Management Conference, Trial Setting Conference, and Order to Show Cause. Plaintiff’s counsel again did not appear due to Plaintiff’s counsel’s original inadvertence and mistake by not correctly scheduling the initial September 13 hearing and by failing to file a Notice of Change of Address with the Court, all of which caused Plaintiff’s counsel to not be informed of the December 12 hearing. At the hearing, the Court ordered the Complaint dismissed without prejudice. It was not until receipt of the December 12, 2023, Minute Order – the first Minute Order received by Plaintiff’s counsel – that Plaintiff’s counsel became aware of the prior hearings. Plaintiff’s Counsel took immediate action and scheduled and reserved a hearing date for this instant motion on December 18, 2023.

In opposition, Defendant argues that the motion to vacate dismissal can only be granted if Plaintiff’s counsel pays Defendant’s reasonable attorney’s fees incurred as a result of preparing for and attending the three Case Management Conferences and the ex parte hearing to shorten time. Defendant requests $1,242.00 in monetary sanctions.

The Court finds Plaintiff has timely sought relief under CCP § 473(b) and Plaintiff’s counsel has demonstrated mistake or inadvertence. Public policy favors adjudication on the merits.

However, relief cannot be granted at this time because Plaintiff has failed to submit an amended complaint with his motion. “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.” (CCP §473(b).)

Accordingly, Plaintiff’s Motion to Vacate Dismissal is CONTINUED to April 23, 2024 at 9:30 a.m. in Dept. SE-C. Plaintiff shall file and serve an amended complaint within 20 days.

Sanctions

As to monetary sanctions, the statute is clear that “where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.” (CCP § 473(c)(2).)

However, under CCP § 473(b)(2), the Court must direct the attorney to pay reasonable compensatory legal fees and costs. Here, Defendant seeks attorney fees for attending the CMCs in September, October, and December, all of which took place before Plaintiff filed his 473(b) motion. As such, they are not compensable under the statute.

Accordingly, upon granting Plaintiff’s Motion to Vacate Dismissal, the Court will award attorney fees in the reduced amount of $810.00 (4.5 hours at $180 per hour).