Judge: Lynne M. Hobbs, Case: 20STCV05227, Date: 2024-04-17 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.
Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.
Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.
If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.
If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
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Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.
Case Number: 20STCV05227 Hearing Date: April 17, 2024 Dept: 30
VAHID FAYAZI vs LOS ANGELES DEPARTMENT OF WATER AND POWER, et al.
TENTATIVE
Plaintiff’s Motion to Set Aside the Dismissal is DENIED. Clerk is directed to give notice.
Legal Standard
Code of Civil Procedure §473(b) provides for mandatory and discretionary relief from dismissal. “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 moves for relief from the dismissal under Code of Civil Procedure section 473(b), arguing that due to Plaintiff’s counsel’s mistake and/or excusable neglect, counsel failed to obtain his client’s authority prior to serving the CCP 998 offer, which was ultimately accepted by Defendant. Plaintiff contends the Court of Appeal agreed that a CCP 998 offer and the resulting judgment were void because the statute requires that the offer contain an “acceptance provision” and none was provided. (Mostafavi Law Group, APC v. Larry Rabineau APC (2021) 61 Cal.App.5th 614, 624-26.)
Here, the motion under Code of Civil Procedure section 473(b) is not timely filed. The action was dismissed on August 1, 2023. This Motion to Set Aside the Dismissal was filed on March 8, 2024, over six months after dismissal.
As expressly provided by the statute, Section 473(b) mandates that a motion for relief be brought “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed. [Citations.]” (Austin v. Los Angeles Unified School Dist.¿(2016) 244 Cal.App.4th 918, 928.) The Court does not have authority under CCP section 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 (“if the Legislature had intended to allow an exception to the six-month limit, it would have expressed that intention in the statute, and the six-month limit must be strictly enforced.”).)
The Court notes that Mostafavi, supra, 61 Cal.App.5th 614 involved a motion to set aside a void judgment under Code of Civil Procedure Section 473(d), which does not have a time limit.
Accordingly, Plaintiff’s untimely Motion to Set Aside the Dismissal is DENIED.
Moving party is ordered to give notice.