Judge Mark E. Windham, Case 20STCV32385 2023-03-27 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Plaintiff Williams Briand’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON AUGUST 30, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT / DISMISSAL IS SET FOR AUGUST 25, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Plaintiff Williams Briand (“Plaintiff”), in pro per, filed this purported class action for civil rights violations against Defendant Los Angeles Country Metropolitan Transportation Authority (“Defendant”), on August 25, 2020. The action was originally filed in the unlimited civil court and reclassified as a limited civil case on November 8, 2021. An order to show cause regarding failure to file proof of service was scheduled and then continued multiple times in the limited court until August 30, 2022, with warning to Plaintiff that failure to appear might result in dismissal of the action. When Plaintiff failed to appear on August 30, 2022, the Court dismissed the action without prejudice. (Minute Order, 08/30/22.)

Plaintiff filed the instant Motion to Vacate Dismissal on February 9, 2023. No opposition to the Motion been filed to date.

The Motion is brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When based on attorney fault with respect to entry of default, default judgment, or involuntary dismissal, a timely request for relief must be granted. (Code Civ. Proc., § 473, subd. (b).) When brought pursuant to the provision for discretionary relief based on party fault, the request must have been filed within a reasonable amount of time.

The Motion was timely brought less than six months after dismissal and is supported by a declaration of fault from Plaintiff, who explains that he failed to appear on August 30, 2022 due to his mother suffering a stroke on August 20, 2022 and passing away shortly thereafter. (Motion, Briand Decl., p. 12:10-16.) Based on these circumstances explaining Plaintiff’s excusable neglect in failing to appear, the dismissal may be vacated under Code of Civil Procedure section 473, subdivision (b).

Plaintiff Williams Briand’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON AUGUST 30, 2022 IS HEREBY VACATED.

ORDER TO SHOW CAUSE REGARDING FAILURE TO FILE PROOF OF SERVICE OF SUMMONS AND COMPLAINT / DISMISSAL IS SET FOR AUGUST 25, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.