Judge: Lisa R. Jaskol, Case: BC692873, Date: 2024-07-12 Tentative Ruling
Case Number: BC692873 Hearing Date: July 12, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On February 6, 2018, Plaintiff Billy Parker (“Plaintiff”) filed this action against Defendants Jessica Monique Rios, FC Pac Holdings LLC, Kan Di Ki LLC dba Diagnostic Laboratories, and Does 1-50 for motor vehicle tort and general negligence.
On March 12, 2018, Defendants Jessica Monique Rios and Kan Di Ki, LLC dba Diagnostic Laboratories filed an answer.
On March 27, 2018, the Court dismissed Defendant FC Pac Holdings LLC without prejudice at Plaintiff’s request.
On January 15, 2021, the Court appointed Kayla Sullivan to act as guardian ad litem for Sean Parker Sullivan.
On September 2, 2021, the Court granted Plaintiff’s motion to substitute Sean Parker Sullivan, by and through his guardian ad litem Kayla Sullivan, as successor-in-interest to Plaintiff, who passed away on March 20, 2019.
On July 25, 2022, the Court set an order to show cause re: dismissal (settlement) for August 29, 2022.
On August 29, 2022, the Court continued the order to show cause to October 28, 2022. Plaintiff’s counsel stated that signature of the release was pending.
On October 28, 2022, the Court continued the order to show cause to February 1, 2023 after Plaintiff’s counsel stated that the settlement was being finalized.
On February 1, 2023, the Court continued the order to show cause at Plaintiff’s request to April 5, 2023.
On July 28, 2023, at Defendant’s request, the Court continued the order to show cause to August 31, 2023.
On August 31, 2023, Plaintiff’s counsel did not appear. At Defendant’s request, the Court continued the order to show cause to November 9, 2023. The Court ordered Plaintiff to appear on November 9, 2023.
On November 9, 2023, no party or counsel appeared or contacted the Court. The case had been pending for more than five years and six months. The Court dismissed the case without prejudice.
On May 9, 2024, Plaintiff filed a motion to set aside or vacate the dismissal, to be heard on July 12, 2024. On June 28, 2024, Defendants FC Pac Holdings LLC, Jessica Monique Rios, and Kan Di Ki, LLC dba Diagnostic Laboratories (“Defendants”) filed an opposition. On July 5, 2024, Plaintiff filed a reply.
PARTIES’ REQUESTS
Plaintiff asks the Court to set aside the dismissal under Code of Civil Procedure section 473, subdivision (b).
Defendants ask the Court to deny the motion.
LEGAL STANDARD
A. Code of Civil Procedure section 473, subdivision (b)
Code of Civil Procedure section 473, subdivision (b), provides in 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 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).)
B. Dismissal for failure to bring a case to trial within five years
Code of Civil Procedure section 583.310 provides that “An action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.)
Code of Civil Procedure section 583.340 provides:
“In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:
“(a) The jurisdiction of the court to try the action was suspended.
“(b) Prosecution or trial of the action was stayed or enjoined.
“(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”
(Code Civ. Proc., § 583.340.)
Code of Civil Procedure section 583.360 provides:
“(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.
“(b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
(Code Civ. Proc., § 583.360.)
DISCUSSION
The Court’s November 9, 2023 order dismissing the case did not state the basis for dismissal. The parties appear to assume the Court dismissed the case because Plaintiff’s counsel did not appear at the hearing as ordered. Accordingly, Plaintiff argues that his counsel’s failure to appear at the August 31, 2023 and November 9, 2023 order to show cause hearings resulted from the inadvertence of counsel’s paralegal, who failed to calendar the hearing dates. Plaintiff has provided an attorney declaration attesting to his attorney’s mistake, inadvertence, and excusable neglect.
The parties have not addressed whether the Court was required to dismiss the case under Code of Civil Procedure section 583.360 because, on November 9, 2023, the case had not been brought to trial within five years and six months after Plaintiff filed it on February 6, 2018.
The time during which an enforceable settlement is in effect is excluded when computing the time that a case has been pending under Code of Civil Procedure section 583.340, subdivision (c). (See Gorman v. Holte (1985) 164 Cal.App.3d 984, 987 [parties “stipulated to the terms of the settlement on the record in open court” and “there remained no issues to be tried after the parties had arrived at a complete settlement of their dispute”]; Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 250 [parties “executed a written ‘Settlement Agreement and Release’ ”]; Schiro v. Curci (1990) 220 Cal.App.3d 840, 843 [parties’ settlement was enforceable under Code of Civil Procedure section 664.6]; Canal Street, Ltd. v. Sorich (2000) 77 Cal.App.4th 602, 608 [“the time during which a settlement agreement is in effect tolls the five-year period, for the reason that attempting to bring an action to trial when all issues have been resolved through settlement would be futile”]; id. at pp. 604-605 [parties placed settlement on record at judicially mandated settlement conference].)
The record here does not show the existence of an enforceable settlement agreement. The parties did not place the terms of a settlement agreement on the record and have not asserted that an enforceable settlement agreement exists. Because the case had been pending for more than five years and six months when the Court dismissed the case, the Court denies Plaintiff’s motion to set aside the dismissal.
CONCLUSION
The Court DENIES Plaintiff’s motion to vacate the November 9, 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.