Judge: Lisa R. Jaskol, Case: 22STCV11379, Date: 2024-04-08 Tentative Ruling
Case Number: 22STCV11379 Hearing Date: April 8, 2024 Dept: 28
Having considered the moving and opposition papers, the Court rules as follows.
BACKGROUND
A. Case number 22STCV11379
On April 4, 2022, Plaintiffs Ernest Garcia (“Garcia”) and Jesus Castro (“Castro”) filed an action against Defendants All American Express, Inc. (“All American”), Gerardo Z. Vidal (“Vidal”), Raymond Yniquez (“Yniquez”), and Does 1-20 for negligence (case number 22STCV11379).
On May 25, 2022, Vidal filed an answer. On June 24, 2022, All American filed an answer. On July 25, 2022, Yniquez filed an answer.
On January 23, 2023, the Court granted Sentry Select Insurance Company’s motion to intervene as the insurer for All American and Vidal.
On August 18, 2023, the Court granted Yniquez’s request for a good faith settlement determination concerning Yniquez’s settlement with Castro.
On September 29, 2023, the Court granted Yniquez’s request for a good faith settlement determination concerning Yniquez’s settlement with Garcia.
On January 30, 2024, the Court dismissed Yniquez with prejudice at the request of Garcia and Castro.
B. Case number 22STCV14742
On May 4, 2022, Yniquez filed an action against All American, Vidal, and Does 1-20 for negligence, negligence per se, and respondeat superior (case number 22STCV14742).
On March 8, 2023, All American and Vidal filed an answer and All American filed a cross-complaint against Cross-Defendants Yniquez and Moes 1-25 for total equitable indemnity, partial equitable indemnity, contribution and repayment, and declaratory relief.
On March 14, 2023, the Court granted the parties’ stipulated request to allow Sentry Select Insurance Company to intervene in the case, to file a complaint-in-intervention, and to defend Vidal.
On April 11, 2023, the Court dismissed All American’s cross-complaint without prejudice at All American’s request.
On November 1, 2023, the Court dismissed the case without prejudice when the parties did not appear for trial.
C. The cases are related and consolidated
On December 20, 2023, the Court found that case numbers 22STCV11379 and 22STCV14742 are related within the meaning of California Rules of Court, rule 3.300(a). 22STCV11379 became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.
On February 2, 2024, the Court granted the parties’ stipulated request to consolidate the cases for purposes of discovery and law and motion.
D. Motion to set aside dismissal
On March 4, 2024, Yniquez filed a motion to set aside the dismissal of case number 22STCV14742, to be heard on April 8, 2024. On March 6, 2024, Garcia and Castro filed an opposition.
Trial is currently scheduled for July 17, 2024.
PARTIES’ REQUESTS
Yniquez asks the Court to set aside the dismissal of case number 22STCV14742.
Garcia and Castro ask the Court to 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. 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.”
(Code Civ. Proc., § 473, subd. (b).)
DISCUSSION
Yniquez argues that, “[b]ased upon the surprise, mistake, and/or inadvertence of Plaintiff’s Counsel, this Action was inadvertently and mistakenly dismissed.” (Motion p. 4.) Specifically, Yniquez asserts that his counsel “believed that this case had already been related to and consolidated with [case number 22STCV11379], as the parties had been in communication about the consolidation and Counsel believed that it had already been handled by Counsel for Ernest Garcia, et al., as they had taken the lead in relating and consolidating the matters. This is Plaintiff’s Counsel's fault and Plaintiff's Counsel admits to this fault. After receiving the Court’s order dismissing the matter, Plaintiff's Counsel only then discovered his inadvertence in the dismissal of the action in order about November 6, 2023.” (Motion p. 4.)
The motion includes a supporting affidavit of fault by Yniquez’s attorney.
In opposition, Garcia and Castro argue that (1) Yniquez did not file the motion within a reasonable time after the dismissal and (2) the error by Yniquez’s counsel was not excusable.
“If the attorney is willing to take the blame – and pay the costs [citation] – the court must set aside the default judgment [or dismissal] ‘unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect . . . .’ ” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:294, p. 5-80, quoting Code Civ. Proc., § 473, subd. (b) (Cal. Practice Guide).)
“Where an ‘attorney affidavit of fault’ is filed, there is no requirement that the attorney’s mistake, inadvertence, etc. be excusable. Relief must be granted even where the default [or dismissal] resulted from inexcusable neglect by [the party’s] attorney.” (Cal. Practice Guide, supra, ¶ 5:295, p. 5-81.)
The Court finds that Yniquez filed the motion within a reasonable time after the dismissal and the dismissal was caused by the mistake, inadvertence, surprise, or neglect of Yniquez’s attorney. Therefore, the Court grants the motion.
The Court directs Yniquez’s counsel to “pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).) If the parties cannot agree on this amount, they may submit supplemental declarations to the Court addressing reasonable compensatory legal fees and costs.
CONCLUSION
The Court GRANTS the motion to vacate the November 1, 2023 dismissal of case number 22STCV14742 filed by Plaintiff Raymond Yniquez.
The Court ORDERS counsel for Plaintiff Raymond Yniquez to pay reasonable compensatory legal fees and costs to Defendants All American Express, Inc., Gerardo Z. Vidal or their counsel under Code of Civil Procedure section 473, subdivision (b). If the parties cannot agree on this amount, they may submit supplemental declarations addressing the amount of reasonable compensatory legal fees and costs. Plaintiff Raymond Yniquez may file a supplemental declaration by May 2, 2024. Defendants All American Express, Inc. and Gerardo Z. Vidal may file a supplemental declaration by May 8, 2024.
The Court sets an order to show cause re: payment of reasonable compensatory legal fees and costs on May 14, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse.
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.