Judge: Lynne M. Hobbs, Case: 21STCV42003, Date: 2024-02-22 Tentative Ruling

Case Number: 21STCV42003    Hearing Date: February 22, 2024    Dept: 30

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED. Moving party to give notice.

Further, as this is non-PI case, this matter is transferred out of the PI Hub forthwith by minute order.

Legal Standard

Reconsideration

Pursuant to CCP § 1008(a):

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

CCP § 473(b) Relief

Pursuant to CCP § 473(b):

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 or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Discussion

Timeliness

Plaintiff’s motion for reconsideration was required to be filed within 10 days after service of the order Plaintiff seeks to have reconsidered. Here, the Court issued its order on

December 13, 2023, and mailed notice to Plaintiff. Plaintiff filed this motion on December 22, 2023, within 10 days.

However, on December 13, 2023, judgment was entered in the case. At that point in time, the Court lost all jurisdiction to hear any motion for reconsideration. “A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.” (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 179.) This is true even if the motion for reconsideration was filed before judgment was entered. (Id. at 182 [“Plaintiff attempts to distinguish the many cases holding that a trial court is without jurisdiction to grant reconsideration after judgment is entered, by pointing out that her motion was filed before the trial court entered its judgment. While that is so, the argument misses the point. The issue is jurisdictional. Once the trial court has entered judgment, it is without power to grant reconsideration. The fact that a motion for reconsideration may have been pending when judgment was entered does not restore this power to the trial court.”].)

Accordingly, the Court lacks any jurisdiction to review this case as a motion for reconsideration. The Court will consider it solely as a motion for relief from an order brought under CCP § 473(b). Given that the motion was brought less than two weeks after the order was entered, it was clearly within the six-month time limit of CCP § 473(b).

Plaintiff argues that due to his Plaintiff’s counsel’s mistaken failure to file proof of service, the case was dismissed. On December 13, 2023, the action was dismissed without prejudice, 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 to file proof of service of summons and complaint/in the alternative Trial Setting Conference. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that he mistakenly and inadvertently, and through excusable neglect, did not able to upload the proofs of service for this Court’s review prior to the December 13, 2023 Order to Show Cause hearing, and mistakenly did not calendar this hearing properly and missed the hearing. (Janfaza Decl., ¶¶ 4-5.) Proofs of Service as to these defendants have been filed, showing they were served in July of 2023. 

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or excusable neglect, and the case is ready to proceed, the dismissal is set aside.