Judge: Lynne M. Hobbs, Case: 21STCV42155, Date: 2023-12-11 Tentative Ruling

Case Number: 21STCV42155    Hearing Date: December 11, 2023    Dept: 30

DANIEL JUAN GODINEZ vs ROBIN LYNN BYRD, et al.

Motion to Vacate / Set Aside Dismissal

TENTATIVE

Plaintiffs’ Motion to Set Aside the Dismissal is GRANTED. The Court sets, in 35 days, an OSC re dismissal and/or sanctions in the amount of $250 for failure to serve / prosecute and failure to file proof of service pursuant to CCP 583.410 and 583.420(a)(1) and CRC Rule 3.110(f). Moving party to give notice.

Background

On November 16, 2021, Plaintiffs Daniel Juan Godinez and Karoljoseph Godinez filed a complaint against Defendant Robin Lynn Byrd alleging causes of action for negligence, and motor vehicle negligence arising out of a vehicle collision that occurred on November 17, 2019.

On May 16, 2023, this Court dismissed this case without prejudice pursuant to CCP 581(b)(3) when no party appeared for trial. The Court also noted there was no proof of service filed.

On November 13, 2023, Plaintiffs filed this motion to set aside the dismissal.

Summary

Moving Arguments

Plaintiff argues that due to mistake, and/or excusable neglect of co-counsel’s, the final status conference and trial dates were not calendared in co-counsel’s calendaring system. Subsequently, the case may have languished amid the press of business coupled with significant understaffing issues during the COVID- 19 pandemic, which resulted in a lack of follow-up on service of the summons and complaint.

However, additional circumstances appear to have created the confluence whereby the case was dismissed approximately six months ahead of the two-year dismissal statute for lack of prosecution, which would not have been reached until November 16, 2023. Further, when a staff member at Ms. Bateman's office was auditing their files recently, they discovered from checking the court docket that this case had been dismissed by the Court on May 16, 2023 for lack of prosecution. The file audit did not reveal that U.S. Legal Group had received a copy of the Court's May 2, 2023 Minute Order or the May 16, 2023 Minute Order dismissing the case for lack of prosecution. Of Counsel secured a copy of the Certificate of Mailing (by purchasing it through the Court's website) from the May 16, 2023 Minute Order indicating that the address for mailing to Ms. Bateman contained the incorrect Zip Code. The Zip Code in the Certificate of Mailing is listed as 91103 (a Pasadena Zip Code), but Ms. Bateman's correct Zip Code is 92868 (City of Orange), which is the Zip Code listed in all of the documents initially filed with the Court in this case.

It also appears that the dismissal did not satisfy the 20-day requirement between notice of the impending dismissal and the date of actual dismissal.

The Court can be assured that the case will prosecuted and moved forward quickly, including, upon an order vacating the dismissal of the case, the immediate assigning of service of process to a new process server for service without any further delay.

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.) The application must be made within six months after the judgment. (Id.) In the case of discretionary relief, the application must be made within a reasonable time. (Id.)

Discussion

Plaintiff argues that due to mistake, and/or excusable neglect of co-counsel’s, the final status conference and trial dates were not calendared in co-counsel’s calendaring system. Subsequently, the case may have languished amid the press of business coupled with significant understaffing issues during the COVID- 19 pandemic, which resulted in a lack of follow-up on service of the summons and complaint. A review of the Court docket for this case shows that the First Amended Standing Order which contains the notice of the final status conference and trial date contained never was served in this case. 

First, Plaintiff is only moving under the discretionary prong for relief, as the mandatory provision of section 473 is unavailable because the dismissal does not stem from any mistake, inadvertence, or neglect on counsel’s part. Rather, it appears to stem from inadvertence, mistake, and/or neglect of co-counsel. (Milton v. Perceptual Development Co. (1997) 53 Cal.App.4th 861, 867 fn. 5 [holding that clients represented by more than one lawyer need not submit affidavits of fault from all at-fault attorneys so long as the declaration submitted establishes proximate cause].)

As to the discretionary prong, 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.) Here, counsel has provided that they failed to calendar the FSC and trial date, and failed to follow up due to significant understaffing issues.

As to diligence, the Court dismissed the matter on May 16, 2023, however, the motion was filed on November 13, 2023. Counsel argues that a staff member of co-counsel’s office discovered during a recent file audit that this case had been dismissed. This was brought to counsel’s attention on October 28, 2023. Counsel argues that the Court’s minute order dismissing the case was not received because the zip code in the Court’s certificate of mailing was incorrect. The zip code in the Certificate of Mailing is listed as 91103 (a Pasadena zip code), but co-counsel’s correct zip code is 92868 (in the City of Orange), which is the zip code listed in all of the documents initially filed with the Court in this case. As such, the Court finds that Plaintiff was diligent in seeking relief as Plaintiff did not have notice the case was dismissed until an audit. The Court's own record is lacking as to normal automatic notices that the Court sends when a case is filed.