Judge Lynne M. Hobbs, Case Number: 21STCV43557, Date: 2023-11-07 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV43557, Date: 2023-11-07 Tentative Ruling

Case Number: 21STCV43557 Hearing Date: November 7, 2023 Dept: 30

OLGA ARANDA vs COSTCO WHOLESALE CORPORATION, et al.

Motion to Reinstate Complaint to Civil Active List

TENTATIVE

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

DISCUSSION

On December 16, 2022, the entire action was dismissed without prejudice pursuant to California Rules of Court, Rule 3.1385(b). The Court noted that Plaintiff has failed to submit a minor’s compromise, and that plaintiff’s counsel represented to the court that she could not locate the guardian ad litem. On April 14, 2023, Plaintiff filed this motion to set aside the dismissal. On May 11, 2023, Defendant filed an opposition.

Plaintiff argues that due to inadvertence, mistake, and/or neglect of Plaintiff’s former counsel Domingo, service of process was not effected, and the case was dismissed.

First, it appears Plaintiff is only moving under the discretionary prong for relief, as Plaintiff has not cited the mandatory prong in the motion. Moreover, the mandatory provision of section 473 is unavailable because the dismissal does not stem from any mistake, inadvertence, or neglect on current counsel’s part. Rather, it appears to stem from inadvertence, mistake, and/or neglect of Domingo. (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].) Because the dismissal stems from Domingo’s fault, he would have to submit a declaration, and he has not done so. As such, without the attorney declaration attesting to fault, the mandatory prong for relief is not available.

The Court similarly finds the discretionary provision of section 473 is also unavailable because the complete failure to do anything in this case since the complaint was filed is not excusable. Further, Plaintiff has failed to 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.)

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.) A reasonably prudent person would not ignore a case that has been filed since 2021 up until the trial date.

As to diligence, the Court dismissed the matter on May 30, 2023, however, the motion was filed on October 5, 2023, and counsel has not explained why they waited over four 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.) There is no explanation for the delay. Counsel admits in the declaration that the firm found out about Domingo’s failure to effect service or failure appear before the Court when the case was dismissed. (Kinan Decl., ¶ 16.) Yet, the declaration is silent as to why Plaintiff did not move to set aside the dismissal earlier, Thus, the four month delay is unreasonable as a matter of law.