Judge Lynne M. Hobbs, Case Number: 20STCV45287, Date: 2024-04-26 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV45287, Date: 2024-04-26 Tentative Ruling

Case Number: 20STCV45287 Hearing Date: April 26, 2024 Dept: 30

MAI LE VONG, et al. vs H LE DONG

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

Judicial Assistant is directed to calendar the trial no later than February 28, 2025. Moving party 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)’s mandatory and discretionary prongs.

Here, the motion is timely filed. The action was dismissed on August 31, 2023. This Motion to Set Aside the Dismissal was filed on February 22, 2024, within six months of the dismissal.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On August 31, 2023, Plaintiff’s counsel did not appear in court for trial because he believed and his calendar reflected, that the trial had been continued to March 5, 2024 when he saw the tentative ruling granting Defendant’s motion to continue trial. A written stipulation was attached to the motion to continue trial, which was prepared by one of defendant's new attorneys, Jay Rubin, who counsel personally knew for over 25 years, and who told Plaintiff’s counsel they needed the time to come up to speed on the facts in the case so they could try to settle it. (Bredlau Decl., ¶ 3.) After seeing the tentative ruling on July 25, 2023 to grant the continuance of this case, Plaintiff’s counsel believed Mr. Rubin would have immediately told him if the motion was denied on July 26. (Id., ¶ 5.) Plaintiff's counsel did not get notice Pierce and Associates had substituted out of the case in June of 2023 putting defendant Dong Le back in pro per.

(Id., ¶ 7.) Counsel was so busy and consumed with getting ready for a big trial, taking many, many depositions, reviewing thousands of documents, working with our many experts, preparing deposition summaries, reading hundreds of pages of depositions, preparing for a focus group, in late July through the end of the year, that he did not realize he did not get notice from anyone about what actually happened at the scheduled motion to continue the trial on July 26. (Id., ¶ 8.)

The Court finds that Plaintiff’s counsel has filed an attorney declaration attesting to fault which sufficiently establishes mistake, inadvertence or neglect.

Defendant argues that Plaintiff’s counsel would have us believe that he did not receive notice of prior counsel's substitution out of this case, the court's notice that the motion to continue trial was taken off calendar, and substitution of attorney into this matter. However, the Court’s notice of taking the motion to continue trial off calendar was sent only to Plaintiff’s counsel’s co-counsel who Plaintiff has explained had dementia. The last substitution of attorney was mailed to an address without a suite number. As to the notice of the first substitution of attorney, the Court does have its doubts as to why Plaintiff’s counsel did not receive this notice. However, Plaintiff’s counsel has explained that at that time, he was incredibly busy and absorbed in preparing for trial in another matter; thus, he may have just overlooked the email. Further, there is evidence attached that Plaintiff’s counsel reached out to Pierce and Associates in January of 2024 discussing the case. (Bredlau Decl., Exh. 13.) This corroborates Plaintiff’s counsel’s statement that he did not know they substituted out of the case. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-34.) With this policy in mind, the Court will resolve its doubts in favor of Plaintiff, and therefore grants the motion. As such, the dismissal is set aside.

Since this matter was close to trial at the time it was dismissed, the Court orders that the trial be calendared to a date convenient to court and parties, but no later than February 28, 2025.

Conclusion

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.