Judge Lynne M. Hobbs, Case Number: 20STCV26672, Date: 2024-04-03 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV26672, Date: 2024-04-03 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: 20STCV26672 Hearing Date: April 3, 2024 Dept: 30

JOSE LUIS TENCHIL, et al. vs ZACHARY SCOTT

TENTATIVE

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

Legal Standard

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal. The discretionary relief prong states: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a … dismissal… taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the … dismissal … was taken.” (CCP section 473(b).) The mandatory prong states: “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 … resulting … dismissal entered against his or her client….” (Id.)

Discussion

Plaintiff moves to set aside the dismissal under CCP section 473(b) due to attorney mistake, inadvertence, or neglect. Plaintiff argues that a judgment of dismissal that implements a terminating sanction is a “dismissal entered” for purposes of section 473(b).

On June 13, 2023, Defendant Scott’s motions for terminating sanctions dismissing the complaint against both Plaintiffs was granted.

On September 6, 2023, the Court dismissed the entire action without prejudice when no party appeared for Jury Trial.

The Court notes that Plaintiff argues the terminating sanction was entered on September 6, 2023. However, the terminating sanction dismissing Defendant Scott, the only defendant in this matter, was entered on June 13, 2023. Plaintiff does not seek to reinstate the complaint that was dismissed on September 6, 2023. Therefore, the motion to reinstate the case against Scott is not timely filed under CCP section 473. This Motion to Set Aside the Dismissal was filed on March 1, 2024, well past six months after the Court granted Defendant’s motion for terminating sanctions on June 13, 2023. 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.)

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