Judge Lisa R. Jaskol, Case Number: 19STCV10814, Date: 2023-12-22 Tentative Ruling

Judge: Lisa R. Jaskol, Case: 19STCV10814, Date: 2023-12-22 Tentative Ruling

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Case Number: 19STCV10814 Hearing Date: December 22, 2023 Dept: 28

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On March 29, 2019, Plaintiff Barbara Russo (“Plaintiff”) filed this action against Defendants Cedars-Sinai Medical Center (“Defendant”) and Does 1-25 for assault, battery, and intentional infliction of emotional distress.

On May 16, 2019, Defendant filed an answer.

On April 19, 2023, the Court granted Defendant’s motion for terminating sanctions and dismissed Plaintiff’s complaint with prejudice. On April 20, 2023, Defendant served notice of the April 19, 2023 ruling.

On October 18, 2023, Plaintiff filed an application to vacate the Court’s April 19, 2023 order and reinstate the case, to be heard on December 22, 2023. On December 6, 2023, Plaintiff filed a “Supplemental Application.” On December 11, 2023, Defendant filed an opposition.

PARTIES’ REQUESTS

Plaintiff requests that the Court vacate the dismissal.

Defendant requests that the Court deny the motion.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (b), provides in 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. . . . 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 against his or her client, and which will result in entry of a default judgment, 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. . . ."

(Code Civ. Proc., § 473, subd. (b).)

DISCUSSION

On February 17, 2023, the Court granted Defendant’s motion to compel Plaintiff to appear for a second session of her deposition and ordered Plaintiff to appear for a deposition within 30 days of the hearing on the motion.

Plaintiff did not appear for her deposition and did not provide dates on which she was available for a deposition.

Because Plaintiff did not comply with the Court’s February 17, 2023 order, and because the Court concluded that less severe sanctions would not result in Plaintiff’s compliance with her discovery obligations, the Court granted Defendant’s motion for terminating sanctions and dismissed the case on April 19, 2023.

Plaintiff’s motion to vacate the dismissal invokes both the discretionary and mandatory provisions of Code of Civil Procedure section 473, subdivision (b). The motion lacks merit under both provisions. The motion asserts that the Court dismissed the case because Plaintiff’s counsel did not appear at the April 19, 2023 hearing. In fact, as explained above, the Court dismissed the case because Plaintiff failed to comply with the Court’s February 17, 2023 order to appear for a deposition within 30 days and the Court concluded that less severe sanctions would not result in Plaintiff’s compliance with her discovery obligations. Therefore, the dismissal was not caused by Plaintiff's counsel's mistake, inadvertence, surprise, or neglect in failing to attend the April 19, 2023 hearing.

Indeed, rather than arguing that Plaintiff’s failure to comply with the Court’s February 17, 2023 order was the result of mistake, inadvertence, surprise, or neglect, Plaintiff argues: “It was the Defendants who are to blame for Plaintiff not providing their deposition. They knew of the Plaintiff’s disabilities. They knew she does not possess a vehicle and of her inability to travel to their Los Angeles or San Bernardino offices for a deposition. But Defendants have refused to travel the reasonable distance of roughly 90 minutes to Plaintiff’s house to take their deposition. So rather than choose to travel to Plaintiff’s home to take a deposition, Defendants chose instead to punish Plaintiff with their punitive motion.” (Motion p. 8.) The Court does not address the merits of this argument except to note that it does not state a basis for relief under Code of Civil Procedure section 473, subdivision (b).

The Court will not consider Plaintiff’s “Supplemental Application” because it was filed after the 6-month deadline for filing motions under Code of Civil Procedure section 473, subdivision (b).

CONCLUSION

The Court DENIES Plaintiff Barbara Russo’s motion to vacate the April 19, 2023 order dismissing the case.

Moving party is ordered to give notice of this ruling.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.