Judge Mark C. Kim, Case BC701331 2022-07-26 Tentative Ruling

Judge: Mark C. Kim, Case: BC701331, Date: 2022-07-26 Tentative Ruling

Case Number: BC701331 Hearing Date: July 26, 2022 Dept: S27

1. Background Facts

Plaintiffs, Luvenia Morris and Alonzo D. Morris Estate, filed this action against Defendants Leggett and King Funeral Home, John Leggett, Josephine Morris, and Evelyn Hopkins on April 6, 2018. The complaint includes causes of action for general negligence, intentional tort, products liability, and premises liability.

On March 29, 2021, default was entered against Evelyn Hopkins.

On May 5, 2021, dismissal was entered as to Leggett and King Funeral Home, John Leggett, and Josephine Morris.

On August 27, 2021, the Court held a default prove-up hearing and continued the matter to December 1, 2021.

On December 1, 2021, the Court continued the default prove-up hearing at the request of Plaintiff and noted it would be the final continuance of this matter. The Court indicated that if no appearances were made, then the matter would be dismissed.

On February 2, 2022, the Court held the default prove-up hearing. After taking the matter under submission, the Court found Plaintiff did not present any competent evidence in support of default judgment and ordered judgment entered for Defendant Evelyn Hopkins and against Plaintiffs for a total of $0.00.

2. Motion to Set Aside Judgment

According to the notice of motion, Plaintiff Luvenia Morris is seeking to set aside the order of dismissal dated December 1, 2021 pursuant to CCP section 473. However, a review of the memorandum of points and authorities shows that, instead of a dismissal entered on December 1, 2021, it appears Plaintiff is seeking to vacate the dismissal that was entered on February 2, 2022. The Court notes that an order of dismissal was not entered on February 2, 2022. Instead, a judgment was entered in favor of Defendant Evelyn Hopkins and against Plaintiffs in the amount of $0.00. The Court will construe Plaintiff’s request as a request to vacate the judgment entered against her on February 2, 2022.

CCP section 473(b) requires an application for relief to be made no more than six months after entry of judgment. Judgment was entered against Plaintiff on February 2, 2022. As this motion was filed on March 2, 2022, the motion is timely.

The Court finds Plaintiff has not demonstrated entitlement to relief.

Plaintiff’s counsel declares that counsel was retained by Plaintiff on or about January 24, 2022. (Motion, Kerendian Decl., ¶ 3.) Counsel states that the default prove-up hearing was scheduled for February 2, 2022. (Id., ¶ 4.) Counsel states that, during that time, counsel was infected with the COVID-19 virus, but that counsel nonetheless prepared for the hearing and scheduled a remote appearance via LACourtConnect prior to February 2, 2022. (Id.) Counsel declares that, due to the effects of COVID-19 and resulting health conditions, counsel was unable to appear at the scheduled hearing on time. (Id.) Counsel states that, by the time counsel was able to connect and contact the court that same morning, counsel was informed that the case had already been heard and a judgment of dismissal entered. (Id.)

As discussed, a review of the February 2, 2022 minute order shows that judgment was entered for Defendant and against Plaintiffs, not that this case was dismissed. (2/2/22 Minute Order.) Further, Plaintiff was sworn in and the default prove-up hearing was held that day. (Id.) Judgment was only entered against Plaintiff after the Court took the matter under submission and found Plaintiff did not present any competent evidence in support of the default judgment. (Id.) Based on this, it appears Plaintiff had a hearing on the merits of her case and that the judgment was taken against Plaintiff as a result of Plaintiff’s failure to present competent evidence in support of the default judgment, not as a result of counsel’s failure to appear for the hearing.

Plaintiff has also presented no evidence that counsel had critical evidence to support Plaintiff’s case that could not have been presented because counsel was not at the hearing. Absent such evidence, the Court cannot find the judgment was taken against Plaintiff as a result of Plaintiff’s counsel’s mistake, inadvertence, and neglect. Plaintiff is thus not entitled to relief pursuant to CCP section 473(b) based on attorney mistake, inadvertence, and neglect. (See Code Civ. Proc., § 473(b) (stating that the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any resulting judgment or dismissal entered against the client “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”).)

Accordingly, the motion to set aside judgment is DENIED.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.