Judge Lynne M. Hobbs, Case Number: 21STCV09843, Date: 2023-11-16 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV09843, Date: 2023-11-16 Tentative Ruling

Case Number: 21STCV09843 Hearing Date: December 20, 2023 Dept: 30

ASHLEY HERRERA vs LESLIE Y. YOUNG

Tentative

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

Discussion

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, or neglect of Plaintiff’s counsel.

Plaintiff cannot obtain relief under the mandatory provisions of Code of Civil Procedure section 473(b) where an action is dismissed for failure to prosecute. “Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].” (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.)

In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the Court stated:

An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes.

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473.

Although “[t]he purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney’s error, impose a burden on the attorney instead, and avoid additional malpractice litigation” (Matera v. McLeod (2006) 145 Cal.App. 44, 63 [reversing trial court’s denial of 473, subdivision (b), motion for relief from default judgment that was entered as a terminating sanction]), courts have construed the mandatory relief provision of section 473, subdivision (b), not to apply to discretionary dismissals, as “section 473 in effect [would] nearly nullif[y] the discretionary dismissal statutes, as few dismissals entered thereunder would ever assuredly be final” (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1816.)

Here, the mandatory provision of section 473 is unavailable because the Court dismissed the action for Plaintiff’s failure to prosecute. On May 18, 2023, the action was dismissed without prejudice, pursuant to Code of Civil Procedure sections 583.410 and 583.420(a)(1) at an Order to Show Cause Re: Dismissal for failure to file proof of service of summons and complaint/in the alternative Trial Setting Conference. While Plaintiff’s counsel argues that

the mandatory provision of CCP section 473 applies to discretionary dismissals that are the equivalent to a default, this was not a default situation, but rather, a failure to prosecute. Counsel was cautioned twice that the Court may exercise its discretion to dismiss the case pursuant to C.C.P. 583.410 and 583.420(a)(1) for Plaintiff's failure to serve the complaint and file Proof of Service within two years. Once on August 26, 2022, and another time on March 17, 2023. Counsel for Plaintiff was present both times. Only after those two warnings did the Court proceed to dismiss the case. As such, this case was not dismissal due to the equivalent of a default, but rather, a failure to prosecute.

As to the discretionary provision of section 473, Plaintiff’s counsel argues he initially made efforts to serve Defendant with the complaint while negotiations with the insurance company were ongoing, however due to mistake, inadvertence and excusable neglect, he failed to properly follow up regarding completion of said service of process and mistakenly failed to calendar the court date regarding completion of said service of process, and thus failed to appear at the Order to Show Cause hearing in this Court on May 18, 2023 (regarding service of process). The Court finds the discretionary provision of section 473 is also unavailable because Plaintiff has failed to: (1) show the neglect at issue was “excusable,” and (2) make the motion within “a reasonable time.” A showing of diligence is required when seeking discretionary relief. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.)

Here, the Court dismissed the matter on May 18, 2023, however, the motion was filed on October 13, 2023, and counsel has not explained why he waited almost five months to file this motion. A delay is unreasonable as a matter of law when it exceeds three months and there is no evidence to explain the delay. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34.) Here, there is no explanation for the delay. As such, the delay is unreasonable as a matter of law.

Next, excusable neglect exists where counsel or the party acted as a reasonably prudent person would under the circumstances. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) Attorney negligence is not a basis for discretionary relief under Code of Civil Procedure Section 473. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 672.) Being busy and experiencing stress in meeting deadlines in the practice of law alone is not excusable neglect. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1355 [counsel unsuccessfully argued the stresses of a busy practice, the hurry to meet deadlines and obligations of other pending litigation].)

Here, counsel has not explained how it was excusable neglect not to make any effort to serve Defendant even after the Court cautioned twice that it may exercise its discretion to dismiss the case for failure to file proof of service. While counsel made initial efforts to serve Defendant (Bral Decl., Exh. 1), these efforts were made in September through October of 2022. Thus, it appears no efforts were made to serve Defendant since October of 2022, even though the Court cautioned that it would dismiss the case. The Court cannot find that this was excusable neglect.

The court acted well within its discretion in dismissing this case for failure to prosecute. (See Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751, 762 [trial court has wide discretion to dismiss for failure to diligently prosecute and its decision will not be disturbed by an appellate court absent a manifest abuse of discretion.].)

Further, on November 16, 2023, this case was continued so Plaintiff can serve Defendant and her insurer with this motion. On December 4, 2023, Plaintiff filed proof of service, showing they were served with the notice of the continued hearing date for this motion. CCP section 1005(b) states: “… all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Plaintiff served Defendant with notice of this hearing on December 4, 2023. Sixteen court days from December 4, 2023 would be December 27, 2023.