Judge Lynne M. Hobbs, Case Number: 19STCV20318, Date: 2024-02-23 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 19STCV20318, Date: 2024-02-23 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

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Case Number: 19STCV20318 Hearing Date: February 23, 2024 Dept: 30

ROSEMARY HATHORNE, AN INDIVIDUAL vs CITY OF LOS ANGELES, A PUBLIC ENTITY, et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED. Plaintiff to give notice.

Legal Standard

Code of Civil Procedure § 473(b) provides: “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP §473(b).) Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

Discussion

Plaintiff seeks a court order vacating the dismissal pursuant to Code Civ. Proc. section 473 subd. (b), and on equitable grounds, arguing that Plaintiff’s previous counsel abruptly left the firm, and he failed to calendar the May 8, 2023 order to show cause re: dismissal.

The motion is not timely filed under C.C.P. § 473. The action was dismissed on May 8, 2023. This Motion to Set Aside the Dismissal was filed on January 4, 2024, more than six months after the complaint was dismissed. The Court does not have authority under C.C.P. § 473(b) to excuse Plaintiff’s noncompliance with the six-month time limit. (See Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.)

However, the Court notes that while Plaintiff’s motion based on statutory grounds is untimely, Plaintiff may be entitled to have the dismissal set aside on equitable grounds upon a proper showing. The Court has the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. (See Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 275.)

Relief from default can be sought at any time on the ground of extrinsic mistake. (Olivera v. Grace (1942) 19 Cal.2d 570, 576; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300.) This is a form of equitable relief, rather than statutory relief, and is based on a finding by the court that the judgment is void. (See Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180-81 [contrasting CCP § 473(d) and extrinsic fraud and mistake]; Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47 [“After the six-month period for statutory relief has passed, the court may still grant relief on equitable grounds, including extrinsic fraud or mistake.”].) However, equitable relief is available only in exceptional circumstances because of the strong public policy favoring finality of judgments. (Pulte Homes Corporation, supra, 2 Cal.App.5th at 275-76.)

To vacate an order of dismissal due to extrinsic mistake, the defaulted party must (1) show that it has a meritorious case, (2) articulate a satisfactory excuse for not presenting a defense to the original action, and (3) demonstrate that it was diligent in seeking to set aside the default once it had been discovered. (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738 (Aldrich).)

“Extrinsic mistake exists when the ground for relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense.” (See Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 276.) If such neglect results in an unjust judgment without a fair adversary hearing, the basis for equitable relief is present and is often called extrinsic mistake. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.)

Plaintiff argues that this matter settled at mediation on October 4, 2022. On March 17, 2023, Plaintiff’s counsel appeared at the Order to Show Cause Re: Dismissal (Settlement) and advised the Court that Plaintiff will need additional time to review and execute the Release of All Claims ("Release"). As such, the Order to Show Cause Re: Dismissal (Settlement) was continued to May 8, 2023. On May 4, 2023, Plaintiff signed the Release and a copy was mailed to Defendant the same day to the address designated in the Release. The Release contained a contingency provision that required Defendant to obtain approval of the settlement from the Los Angeles City Council.

The handling attorney for Plaintiff abruptly left the firm. He failed to calendar and/or advise the firm of the May 8, 2023 Order to Show Case Re: Dismissal (Settlement). Accordingly, there were no appearances on behalf of Plaintiff at this hearing (or Defendant) and the Court dismissed the matter without prejudice. Plaintiff argues that in light of the enforceable contract between the Parties following Plaintiffs execution and mailing of the Release, Plaintiff justifiability relied on the terms of the Release and anticipated that Defendant was in the process of seeking approval of the settlement from the Los Angeles City Council. Thus, on October 27, 2023, and again on November 28, 2023, Plaintiff's counsel requested the status of the settlement funds from Defendant. On November 28, 2023, Defendant finally responded, claiming that it never received the executed Release and that the case had been dismissed. Plaintiff, having just learned of Defendant's erroneous position as to the enforceable settlement and Defendant's unilateral and improper withdrawal thereof, was only put on notice of this issue on November 28, 2023, at which time the statutory six-month cut off period for relief pursuant to California Code of Civil Procedure section 473(b) has expired.

Plaintiff fails to address the first element. There is no showing that Plaintiff has a meritorious case.

Further, Plaintiff’s excuse for not presenting a defense to the original action is not satisfactory. Plaintiff should have sought to set aside the dismissal as soon as she received notice the case was dismissed, instead of relying on Defendant, an adversary, to execute the settlement when the case was dismissed. Plaintiff had not finished the process of settlement when the Court dismissed the case, and thus should have known that without a pending case, the settlement was at risk. Plaintiff contends the former lawyer left the firm, but has not explained why the Court’s mailing of notice of the dismissal did not result in notice to Plaintiff.

As to the third element requiring diligence, Plaintiff’s counsel does not state when the discovery of the mistaken dismissal occurred or what may have caused the delay in discovering the mistake. Instead, Plaintiff’s counsel argues he followed up on the settlement on October 27, 2023. There is no explanation for the delay from June to the end of October. Further, if Defendant responded informing Plaintiff on November 28, 2023 that the case had been dismissed, why did Plaintiff wait until January to file this motion? Therefore, counsel has not demonstrated diligence. Moreover, the Court notes that notice was given of the dismissal. “Relief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action.” (See id. at 276.) Despite being provided with notice, Plaintiff did not move for relief.

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is DENIED.