Judge Lisa R. Jaskol, Case Number: 22STCV01353, Date: 2024-07-08 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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On January 12, 2022, Plaintiff Anthony Sykes (“Plaintiff”) filed this action against Defendants Elmer Aguilar (“Aguilar”), Lamar Adams (“Adams”), and Does 1-10 for negligence, negligent entrustment and, negligence per se.

On March 5, 2024, Adams filed a cross-complaint against Cross-Defendants Aguilar and Roes 1-10 for indemnity, contribution, and declaratory relief.

On March 20, 2024, the Court dismissed Aguilar without prejudice from Plaintiff's complaint.

On June 6, 2024, Plaintiff filed a motion to vacate dismissal to be heard on July 8, 2024.

Plaintiff asks the Court to vacate Aguilar’s dismissal under the mandatory provisions of Code of Civil Procedure section 473, subdivision (b).

“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. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”

On March 29, 2023, Plaintiff filed a proof of service showing substituted service of the summon and complaint on Aguilar on March 28, 2023.

On July 12, 2023, the Court set an order to show cause re: failure to file entry of Aguilar’s default for October 16, 2023.

On July 18, 2023, Plaintiff requested entry of Aguilar’s default but the clerk rejected the request, noting that Plaintiff had not filed a proof of service of a statement of damages on Aguilar.

On October 16, 2023, the Court continued the order to show cause to January 23, 2024 because Plaintiff’s counsel stated the parties were trying to settle the matter and needed a continuance.

On October 31, 2023, Plaintiff submitted another request for Aguilar’s default but the clerk rejected the request, again citing the lack of proof of service of the statement of damages.

Plaintiff’s counsel failed to appear at the continued order to show cause hearing on January 23, 2024. The Court issued an order advising Plaintiff’s counsel that the Court might exercise its discretion to dismiss the action based on Plaintiff's failure to prosecute the case, failure to bring case to trial within two years, and failure to enter default. The Court set an order to show cause re: dismissal for failure to prosecute and enter default for March 20, 2024 with any declarations to be filed at least five court days before the hearing.

Plaintiff did not obtain Aguilar’s default and did not file a declaration before the March 20, 2024 order to show cause hearing. The Court dismissed Plaintiff’s claims against Aguilar without prejudice.

In his motion to vacate the dismissal, Plaintiff argues the dismissal resulted from his counsel’s mistake and inadvertence in failing to inform the Court that Plaintiff had served the lawsuit on Aguilar. (Motion p. 4.) Plaintiff misunderstands the Court’s reason for dismissing Plaintiff’s claims against Aguilar. On March 29, 2023, Plaintiff filed the proof of service of the summons and complaint on Aguilar.^{^[1]} Therefore, service of the summons and complaint was not an issue.

Instead, the Court dismissed the case because Plaintiff’s failure to obtain Aguilar’s default delayed Plaintiff’s prosecution of the case. (See Cal. Rules of Court, rule 3.110(g) [“If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed”]; see Code Civ. Proc., § 583.410.) Despite the clerk’s repeated instruction to file proof of service of a statement of damages – a prerequisite to entry of default in a personal injury case – Plaintiff never submitted a proof of service on Aguilar of a statement of damages.

The Court DENIES Plaintiff Anthony Sykes’s motion to vacate the March 20, 2024 order dismissing the case.

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

[1] Plaintiff’s counsel asserts that Plaintiff served unspecified documents on Aguilar “on November 20, 2023, via substituted service, and mailed a copy of service on November 21, 2023.” (Hughes dec. ¶ 4.) According to counsel, the proof of service is “exhibit ‘A’ ” to the motion. However, the motion includes no exhibits.