Judge: Mark E. Windham, Case: 20STLC05139, Date: 2022-09-21 Tentative Ruling

Case Number: 20STLC05139    Hearing Date: September 21, 2022    Dept: 26

MOTION TO VACATE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

Plaintiffs Behrouz Shafie and Law Offices of Behrouz Shafie & Associates’ Motion to Vacate Dismissal is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 317(b)) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005(b)) OK

SUMMARY OF COMPLAINT: Action for motor vehicle negligence.

REQUEST FOR RELIEF: Vacate dismissal of action due to Plaintiff’s failure to appear at trial.  

OPPOSITION: Plaintiffs have not demonstrated that their failure to appear for trial was due to mistake, inadvertence, surprise or excusable neglect. Plaintiffs’ failure to appear was inexcusable. Nor have Plaintiffs shown that they brought the Motion within a reasonable amount of time following the dismissal. If the dismissal is granted, Defendants should be awarded fees of $1,000.00.

REPLY: Plaintiffs gave the case file to Attorney Brian McMahon to work on and it was inadvertently placed in a larger file. As a result, the trial date was not calendared. Defense counsel’s communications with Plaintiffs’ office could have been to any associate or staff member.  

ANALYSIS:

On June 18, 2020, Plaintiffs Behrouz Shafie and Law Offices of Behrouz Shafie & Associates

(“Plaintiffs”), representing themselves, filed this action against Defendants Diana Hakimi and Hayim Tovim 2 (“Defendants”). Defendants filed an Answer on December 14, 2021. When Plaintiffs failed to appear for trial on December 16, 2021, the Court dismissed the action without prejudice. (Minute Order, 12/16/21.)

Plaintiffs filed the instant Motion to Vacate Dismissal on June 7, 2022. The Motion initially came for hearing on July 21, 2022 and was continued to allow consideration of the opposition and reply papers, which had not been available to the Court at the time of the hearing. (Minute Order, 07/21/22.)

Discussion

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, 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 and any neglect by the party must be “excusable.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420.)

First, Defendants are correct to point out that this Motion can only be brought pursuant to the provision for discretionary relief. Plaintiffs are self-represented and cannot rely on inexcusable neglect by an attorney for relief. (See Code Civ. Proc., § 473, subd. (b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) However, the “trial court’s discretion to deny a motion for relief under section 473 based on the failure to establish excusable neglect is limited to circumstances where ‘inexcusable neglect is clear . . . .” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th at 1419-1420.)

Inexcusable neglect by Plaintiffs is clear here. Plaintiffs declare they were using another attorney Brian McMahon, to help with this action, but do not indicate from what date. (Motion, Shafie Decl., ¶5.) McMahon provides a declaration in reply to the opposition that states the case file was inadvertently placed in a larger file and, as a result, he did not calendar the trial date. (McMahon Decl., filed 07/12/22, ¶3.) If Plaintiffs were using McMahon to handle all the papers in this action, especially from the start of the case when the trial date was first set, it was inexcusable that neither the Court nor defense counsel was notified in order to serve papers to McMahon. Indeed, Defendants’ Answer was served electronically on Plaintiffs on December 14, 2021, just two days before the trial date. Yet Plaintiffs do not explain why they did not forward the Answer to McMahon upon its receipt.

Defendants also present evidence their attorney was in communication with someone from Plaintiffs’ office in the month leading up to trial. (Opp., Zadeh Decl., ¶8; Shafie Decl., filed 07/12/22, ¶3.) Plaintiffs do not explain why those emails from November 11, 2021 to December 14, 2021, did not alert them or McMahon to check on the case file. Plaintiff Shafie simply argues that the law office has a single email address and the communications with defense counsel could have been from any associate or paralegal. (Reply, Shafie Decl., ¶3.) That Plaintiffs do not even know who was exchanging emails with defense counsel in the month leading up to the filing of the Answer and trial date demonstrates an inexcusable failure to manage this case.

Finally, Plaintiffs have not shown that this Motion was filed within a reasonable amount of time. The Court gave notice of the dismissal on December 16, 2021. (Certificate of Mailing, 12/16/21.) McMahon was then sent the notice of dismissal by Plaintiffs’ staff. (Motion, Shafie Decl., ¶5.) McMahon does not explain whether the dismissal was received and why it was not acted upon promptly. (McMahon Decl., ¶¶1-3.) Instead, the instant Motion was filed almost six months later, on June 7, 2022.

Conclusion

Plaintiffs Behrouz Shafie and Law Offices of Behrouz Shafie & Associates’ Motion to Vacate Dismissal is DENIED.

Defendants to give notice.