Judge: Lynne M. Hobbs, Case: 22STCV26755, Date: 2024-04-10 Tentative Ruling

Case Number: 22STCV26755    Hearing Date: April 10, 2024    Dept: 30

GENISHA JACKSON vs WALLGREEN CO., et al.

TENTATIVE

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.

The Court calendars in 60 days an OSC re sanctions in the amount of $120 for failure to file proof of service of summons and complaint on the defendants pursuant to CRC rule 3.110(b) and (f).

Moving party is ordered to give notice.

Discussion

Here, the motion is timely filed. The action was dismissed on February 15, 2024. This Motion to Set Aside the Dismissal was filed on March 6, 2024, within six months of the dismissal.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On February 15, 2024, the entire action was dismissed without prejudice, pursuant to Code of Civil Procedure Section 581(b)(3), when Plaintiff did not appear for Non-Jury Trial. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the Plaintiff’s firm had no knowledge of the pending hearing dates, because the hearing dates were inadvertently not calendared. (Clarke Decl., ¶ 8.) The Firm utilizes a central litigation calendar wherein all Attorneys and Paralegals are required to contemporaneously record all appearance dates and filing deadlines as they become aware of them. The Firm also engages a central database, known as Abacus, where contemporaneous records must be made whenever an employee interacts with a file. However, a check of the Firm’s litigation calendar and Abacus reveals none of the hearing dates mentioned above were calendared and no record of them was found in Abacus. (Id., ¶ 9.)

The Court finds that Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect in supervising the work of the paralegal, and the dismissal must be set aside. (See Hu v. Fang (2002) 104 Cal.App.4th 61, 64-65 (“‘[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.’ [Citations] Thus, Valdez was responsible for supervising Lui’s work and is responsible for Lui's work product, including his mistake. [Citations] [¶] Valdez, as required, acknowledged that Liu’s error was attributable to the attorney and requested relief from default. The trial court should have granted the Motion.”).)

California Rules of Court rule 3.110(b) provides that "[t]he complaint must be served on all named defendants and all proofs of service on those defendants must be field with the court within 60 days after the filing of the complaint." Here, Plaintiff has failed to file the proof of service of the summons and complaint. The Court, therefore, will issue an OSC to determine whether good cause exists not to sanction Plaintiff for failure to comply with the deadlines. LASC local rule 3.10 allows the Court to impose sanctions for the failure or refusal to comply with time standards or deadlines.  Any responsive documents must be filed at least 5 days prior to the appearance hearing date.

Conclusion

Plaintiff’s Motion to Set Aside the Dismissal is GRANTED.  The Court calendars an OSC re sanctions for failure to file proof of service.