Judge: Mark E. Windham, Case: 20STLC08573, Date: 2024-03-05 Tentative Ruling
Case Number: 20STLC08573 Hearing Date: March 5, 2024 Dept: 26
Marine
One Acceptance Corp. v. Maglasang, et al.
MOTION TO
VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff Marine One Acceptance
Corporation’s Motion to Vacate Dismissal is DENIED.
ANALYSIS:
On October 8, 2020, Plaintiff
Marine One Acceptance Corporation (“Plaintiff”) filed the instant action for
breach of contract, common counts, foreclosure, possession of personal
property, and injunctive relief against Defendants Justin Maglasang and Steve
Gordon (“Defendants”). On March 15, 2022, the Court denied Plaintiff’s
application for writ of possession without prejudice. (Minute Order, 03/15/22.)
The action came for trial on April 7, 2022 and at Plaintiff’s request for
additional time to serve Defendants, the Court set an order to show cause for
July 20, 2022. (Minute Order, 07/20/22.) Plaintiff’s application for writ of
possession was denied on the merits on May 10, 2022.
When Plaintiff failed to appear at
the order to show cause, the Court dismissed the action without prejudice.
(Minute Order, 07/20/22.) Plaintiff
filed the instant Motion to Vacate Dismissal on February 13, 2024. No
opposition to the Motion has been filed to date.
Discussion
The motion is first
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.
Plaintiff also
argues that relief is available on equitable grounds. To qualify for equitable
relief based on extrinsic mistake, which exists when circumstances extrinsic to
the litigation have unfairly cost a party a hearing on the merits, the
defendant must demonstrate: (1) “a meritorious case”; (2) “a satisfactory
excuse for not presenting a defense to the original action”; and (3) “diligence
in seeking to set aside the default once the fraud [or mistake] had been
discovered.” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th
1241, 1245-1246 (citing In re Marriage of Stevenot (1984) 154 Cal.App.3d
1051, 1071).) Plaintiff has not shown a satisfactory excuse for failing to
appear at the order to show cause. The record shows that Plaintiff appeared in
Court through counsel Matthew F. Janowicz on April 7, 2022, at which time the
order to show cause was set. (Minute Order, 04/07/22.) Additionally, notice of
the ruling was mailed to Plaintiff’s counsel on the same date. (Certificate of
Maling, 04/07/22.) That notice was mailed to attorney Dustin M. Tardiff was due
to Plaintiff’s counsel’s failure to update the attorney of record with the
Court. It appears that Plaintiff’s lack of notice was due to various staffing
changes at Plaintiff’s counsel’s firm and the failure to update the handling
attorney. (Motion, Janowicz Decl., ¶¶6, 8.) However, given that notice was made
both in person and by mail to Plaintiff’s counsel’s office, this does not
amount to a reasonable excuse for failing to appear on July 20, 2022.
Furthermore, Plaintiff has not demonstrated diligence in seeking relief
from the dismissal. The instant Motion was filed almost a year-and-a-half after
the ruling on July 20, 2022, with no explanation for this extreme delay other
than the ongoing staffing changes at Plaintiff’s counsel’s office. As discussed
above, this was not reasonable. The request for equitable relief, therefore, is
denied.
Conclusion
Plaintiff Marine One
Acceptance Corporation’s Motion to Vacate Dismissal is DENIED.
Moving party to give
notice.