Judge Lynne M. Hobbs, Case Number: 21STCV02731, Date: 2023-09-07 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV02731, Date: 2023-09-07 Tentative Ruling

Case Number: 21STCV02731 Hearing Date: December 7, 2023 Dept: 30

ERIK RIVAS vs DARLENE BETH DUBOIS

Motion to Set Aside / Vacate Dismissal

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal DENIED.

Background

On January 22, 2021, Plaintiff Erik Rivas filed a complaint against Defendant Darlene Beth Dubois, alleging causes of action for motor vehicle and general negligence, arising out of a vehicle collision that occurred on January 24, 2019.

On February 6, 2023, the Court dismissed the case pursuant to Code of Civil Procedure sections 583.410 and 583.420(a)(1) when Plaintiff did not appear for Order to Show Cause Re: Dismissal for Failure of Plaintiff to Served/Prosecute (CCP 583.410, 583.420(a)(1), CRC -Rule 3.110(b)(and (f); Order to Show Cause Re: Dismissal Why this Action Should Not Be Dismissed for Failure of Plaintiff to Enter Default/Default Judgment Pursuant to (CRC – Rule 3.110(g) and (h)); and Trial Setting Conference. The Court also noted there was no proof of service showing that Defendant has been served with the summons and complaint in this case.

On August 14, 2023, Plaintiff moved to set aside dismissal under Code of Civil Procedure section 473(b). On September 7, 2023, the Court continued the hearing.

On September 15, 2023, Plaintiff filed this supplemental motion to set aside the dismissal on equitable grounds. On October 3, 2023, this Court continued the hearing, and allowed supplemental briefing.

On November 17, 2023, Plaintiff filed a second amended notice of motion to set aside dismissal on equitable grounds.

Discussion

The Court adopts it tentative regarding the 473(b) argument for relief from attorney mistake, that was issued for the August 14, 2023 hearing. The motion under mandatory relief is untimely.

Plaintiff supplements to move to set aside the dismissal entered on February 6, 2023 on equitable grounds due to extrinsic mistake.

First, Plaintiff contends that he has a meritorious case. Plaintiff, a U.S. Postal Carrier, was delivering mail on January 24, 2019. He was a pedestrian crossing the intersection of Van Ness and 166th Street in a clearly marked crosswalk on a green light. Defendant failed to yield the right of way while making a left turn and struck Plaintiff, knocking him to the ground. (See Complaint; Kay Decl., ¶ 8.)

Second, Plaintiff proffers the excuse for not proceeding with the original action. After the October 31, 2022 hearing, Plaintiff’s counsel’s legal assistant, Frances Bracamonte, was instructed to submit an Application for Publication in this matter and calendar an OSC hearing scheduled for February 6, 2023. (Bracamonte Decl., ¶ 4.) Due to a computer crash and calendar system glitches, the OSC hearing set for February 6, 2023 did not show up on the system. (Id., ¶ 5; Kay Decl., ¶ 9.)

Finally, Plaintiff avers that after discovering the default, Plaintiff Counsel instructed his legal assistant Bracamonte to request a reservation hearing date for a motion to set aside dismissal. The reservation was made on February 15, 2023, for a hearing date of September 7, 2023. (Kay Decl., ¶ 3.) Counsel prepared the motion to set aside the dismissal and believed it was filed around March. (Id., ¶ 6; Bracamonte Decl., ¶ 8.) Due to Bracamonte’s husband’s chemo treatments, the motion was not filed. (Bracamonte Decl., ¶ 9.) Further, Bracamontes was not in the office for at least two weeks in July. (Bracamonte Decl., ¶ 10.) Due to this, counsel was not aware that the 6-month deadline to file the motion was approaching. (Kay Decl., ¶ 5.) Upon Bracamontes’ return to the office, counsel noticed the motion was never filed, and they immediately filed it on August 13, 2023. (Id., ¶ 7.)

Equitable relief is available only in exceptional circumstances. Pulte Homes Corp. v. Williams Mechanical Inc. (2016) 2 Cal.App.5th 267. 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. [Citation.]” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503 [52 Cal. Rptr. 3d 862].) “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. [Citation.]” (Ibid).

Here, Plaintiff cannot show that he was prevented from participating in the action. She was given four months notice of the OSC re dismissal. Putting aside the issue of whether Plaintiff has established in her pleadings that she has a meritorious case, Plaintiff's Counsel has not articulated a satisfactory excuse for not presenting a reason why she would have prevailed at the OSC hearing re dismissal. Further she does not show that subsequent to learning of the dismissal, that she demonstrated diligence in seeking to set aside the dismissal. None of the actions attributable to Plaintiff's failure to appear at the OSC and the failures cited since learning of the dismissal constitute extrinsic mistake.