Judge Lynne M. Hobbs, Case Number: 20STCV32167, Date: 2024-02-02 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV32167, Date: 2024-02-02 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: 20STCV32167 Hearing Date: February 2, 2024 Dept: 30

ZAREENA BEGUM KHAN, et al. vs TIGRAN MNATSAKANYAN, et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is DENIED. Moving party 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.)

Code of Civil Procedure section 473, subdivision (d) provides this Court with the authority, upon motion by a party or upon the Court’s own motion, to set aside any void order. (Code Civ. Proc., § 473, subd. (d) [“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”].) Only “void” orders may be set aside under Code of Civil Procedure section 473, subdivision (d), as opposed to voidable orders. (Ibid.)

“There is no time limit to attack a judgment [or order which is] void on its face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.) An order is considered “void on its face” where “the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence.” (Ibid.) Alternatively, where an order is not “void on its face”, the challenging party must challenge the order “within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity.” (Ibid.) An order will not be “void on its face” where the invalidity “can be shown only through consideration of extrinsic evidence, such as declarations or testimony.” (Ibid.)

“[I]nclusion of the word ‘may’ in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) However, the trial court “has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void…” (Id. at pp. 495-496.) Thus, the reviewing court “generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, if so, whether the trial court properly exercised its discretion in setting it aside.” (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822.)

A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in [a] fundamental sense’ due to the ‘‘entire absence of power to hear or determine the case’ ‘resulting from the ‘‘absence of authority over the subject matter or the parties.’ ‘To be sure, a court that ‘‘‘acts contrary to [its] authority’’ ‘‘‘to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites’ ‘is often said to lack ‘jurisdiction.’ But such acts do not render the court's ensuing judgment or order void. That is because ‘jurisdictional errors can be of two types[:] A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.’ Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgments and orders may not. (People v. North River Insurance Co. (2020) 48 Cal.App.5th 226, 233-234 (citations omitted).)

Finally, even where relief is no longer available under statutory provisions, a trial court generally retains the inherent power to vacate a default judgment or order on equitable grounds where a party establishes that the judgment or order resulted from extrinsic fraud or mistake. (Pittman, supra, 20 Cal.App.5th at 1025.)

Discussion

Plaintiff moves to set aside the dismissal under CCP sections 473(b) and 473(d) due to mistake, inadvertence, or neglect. Plaintiff’s counsel’s new paralegal failed to calendar the FSC and trial dates. Plaintiff also argues that the court improperly dismissed the case where one Defendant had already been served and answered.

However, the motion is not timely filed under CCP section 473(b). The action was dismissed on May 3, 2023. This Motion to Set Aside the Dismissal was filed on November 11, 2023, past six months after the Court dismissed the complaint. 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.) Thus, the motion for relief under CCP section 473(b) is denied.

Next, the Court finds that Plaintiff has failed to show there was a void judgment in order to set aside the dismissal under CCP section 473(d). Plaintiff merely argues that the Court improperly dismissed the case where one defendant had already been served and answered. However, the case was dismissed pursuant to CCP section 581(b)(3) when Plaintiff failed to appear for trial. Plaintiff cites to no authority that states the Court cannot dismiss the action when one defendant has appeared. Plaintiffs failed to appear for trial, admittedly due to counsel’s own negligence. Plaintiffs’ recourse was to move under CCP section 473(b) within 6 months of the dismissal. They failed to do so.

The Court has no authority under Section 473(d) to set aside the order of dismissal without a showing of a void judgment.

Finally, Plaintiffs seek to set aside the dismissal based on equitable grounds.

The Court has the inherent authority to set aside a judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. (Pulte Homes Corporation v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 275.) “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.” (Id. at 276.) 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. (Id. at 275-76.) “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.” (Id. at 276.)

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).)

Counsel fails to address whether there is a meritorious case, and fails to demonstrate diligence. There is no explanation as to why there was over a 6-month delay in seeking relief. The Court mailed notice of the dismissal on May 3, 2023, to Plaintiffs’ counsel. Plaintiffs fail to explain why they didn’t move for relief sooner.