Judge Lynne M. Hobbs, Case Number: 20STCV06847, Date: 2023-12-13 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV06847, Date: 2023-12-13 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.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

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: 20STCV06847 Hearing Date: December 13, 2023 Dept: 30

RUBEN COTA, AN INDIVIDUAL vs CHRISTOPHER K. OSTRANDER, AN INDIVIDUAL

Motion to Set Aside / Vacate Dismissal

TENTATIVE

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

Legal Standard

A plaintiff may dismiss its complaint in its entirety as to any defendant with or without prejudice prior to the actual commencement of trial. (CCP § 581(b)(1), (c).) Dismissal is effective when entered. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425.) Entry of dismissal terminates the action against the dismissed defendants. (Id.) Further, the entry of dismissal of an entire action divests the trial court of jurisdiction to enter further orders in that action, except for the limited purpose of awarding costs and statutory attorney fees (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261) or entertaining a motion to vacate on grounds of mistake, excusable neglect and so forth (CCP § 473; Hagan Engineering, Inc. v. Mills (2003) 115 Cal.App.4th 1004, 1008).

Under CCP section 473(b), the Court may relieve a party from a voluntary dismissal taken against it through its mistake, inadvertence, surprise, or excusable neglect. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.) This subdivision has mandatory and discretionary components. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25.) The mandatory component only reaches those dismissals which occur through failure to oppose a dismissal motion, viz., those dismissals which are procedurally equivalent to a default. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.)

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 of Civil Procedure section 473 subd. (b), and on equitable grounds, arguing that Plaintiff’s previous counsel, Patrick Khalil, unintentionally dismissed the entire action, instead of dismissing only Defendant, due to personal issues which subsequently resulted in him no longer being employed by present Plaintiff’s counsel’s law firm.

The motion is not timely filed under C.C.P. § 473. The action was dismissed on November 7, 2022. This Motion to Set Aside the Dismissal was filed on October 30, 2023, more than six months after the complaint was dismissed, and almost one year later. 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.)

Plaintiff relies on Whittier Union High School Dist. v. Superior Court (1977) 66 Cal.App.3d 504 for the proposition that while relief must usually be sought under 473(b) within six months after dismissal is entered, dismissal can be vacated at any time when it is unauthorized and the client brings the motion shortly after learning of it. But in Whittier the attorney, without the knowledge and consent of the client, forged the signatures of the plaintiffs on a release and indemnity agreement and forged endorsements on a draft for funds to be delivered by the insurer of the defendant to the attorney and the plaintiffs could obtain relief as the attorney lacked power to dismiss the action and acted beyond the scope of his authority. Whittier involved attorney fraud, not mere mistake or inadvertence and the court there found the actions of the attorney were voidable for an indeterminate period and the plaintiffs acted within a reasonable time after learning of the actions. Here, Plaintiff failed to bring the motion within six months after the dismissal. There is no argument that Plaintiff’s counsel forged any documents or acted outside the scope of his representation by dismissing the case. There is no argument of attorney fraud.

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 fails to address the first two elements. There is no showing that Plaintiff has a meritorious case, and a satisfactory excuse for not presenting a defense to the original action. In fact, Code of Civil Procedure section 583.210(a) and 250(a)(1) requires dismissal because service of the summons and complaint on all parties was not made within three years. As to the third element requiring diligence, there is no factual basis to the claim that Plaintiff was diligent in seeking to set aside the default once it was discovered. The mandatory dismissal for failure to serve should have been on Plaintiff counsel's calendar. Further, Plaintiff 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 generally argues that “[u]pon discovering the dismissal and investigating the situation, [he] promptly sought relief from the Court.” (Azizi Decl., ¶ 5.) Therefore, counsel has not demonstrated diligence. Moreover, the Court notes that the dismissal states 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 for almost a year.