Judge Mark E. Windham, Case 20STLC08868 2022-09-27 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.

Plaintiffs Pablo Espinosa and Hector Espinosa’s Motion to Vacate Dismissal is DENIED.

REQUEST FOR RELIEF: Vacate dismissal of action due to Plaintiffs’ attorney’s fault.

On May 20, 2020, Plaintiffs Pablo Espinoza and Hector Espinoza (“Plaintiffs”) filed this action against Defendant Tabitha Coronado (“Defendant”). Trial in this matter was set for April 19, 2022. When Plaintiffs failed to appear for trial, the Court dismissed the action without prejudice. (Minute Order, 04/19/22.) Also, Plaintiffs have not filed proof of service of the Summons and Complaint.

Plaintiffs filed the instant Motion to Vacate Dismissal on September 7, 2022. No opposition has been filed to date.

First, the Motion was not timely filed at least 16 court days prior to the noticed hearing date, as required by Code of Civil Procedure section 1005, subdivision (a). The Motion was filed only 14 court days before the hearing. Even if the Court were to allow the late-filed Motion, the request for relief must be denied on the merits.

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.)

The Motion is brought pursuant to the provision for relief due to attorney fault. (Motion, p. 3:3.) It was timely filed less than six months after the order dismissing the action. However, the Motion is not accompanied by an attorney declaration of fault that explains Plaintiffs’ failure to appear for trial on April 19, 2022. Instead, the supporting declaration only mentions the difficulty Plaintiffs have had locating and serving Defendant with the Summons and Complaint. (Motion, Corder Jr. Decl., ¶¶1-3.) The declaration also seems more concerned with Plaintiffs’ attendant request to allow service by publication than their non-appearance for trial. Accordingly, the declaration fails to demonstrate that Plaintiffs did not appear at trial due to their attorney’s mistake, inadvertence, fault or neglect. Without such a declaration, relief pursuant to Code of Civil Procedure section 473, subdivision (b) cannot be granted.

Finally, to the extent the Motion asks the Court to allow Plaintiffs to serve Defendant with the Summons and Complaint by publication, such a request is not within the jurisdiction of the Court until the action has been reinstated.

Plaintiffs Pablo Espinoza and Hector Espinoza’s Motion to Vacate Dismissal is DENIED.