Judge: Mel Red Recana, Case: 20STCV03552, Date: 2024-09-23 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 20STCV03552 Hearing Date: September 23, 2024 Dept: 45
Hearing date:
September 23, 2024
Moving Party: Plaintiff
Kail De Lyon (Plaintiff)
Responding
Party: None
Motion
to Set Aside Dismissal
The Court
considered the moving papers, opposition, and reply.
The
motion is GRANTED.
Background
On January 28,
2020, Plaintiff Kail De Leon (Plaintiff) filed his Complaint against his former
employers, Defendants Juanita’s Foods, Inc. (Juanita’s) and Aerotek
Professional Services (Aerotek). Plaintiff also sued his coworkers in their
individual capacities, Defendants Ed Lavasseur and Gerald DeVual. Each
defendant was represented by separate counsel. (Declaration of Tizoc Perez
Casillas (Perez-Casillas Decl.), ¶ 2.)
On September 17,
2020, Defendant Ed Levasseur filed a Cross-Complaint against Juanita’s alleging
causes of action for indemnification, violation of California Labor Code
section 2802, and declaratory relief.
On September 23,
2020, Defendant Gerald DeVual (Complainant DeVual) also filed a
Cross-Complaint, alleging the same causes of action as Defendant Ed Levasseur.
On October 18,
2022, Plaintiff entered into a confidential settlement agreement with Aerotek,
pursuant to an arbitration agreement. (Perez-Cassilas Decl. ¶ 5.) And on
September 5, 2023, Plaintiff entered into a confidential settlement agreement
with Juanita’s, pursuant to a private mediation. (Id. at ¶ 6.)
On October 17,
2023, Plaintiff erroneously filed a Request for Dismissal with prejudice as to all
parties and causes of action. (Perez-Casillas Decl. ¶ 6; Exh. 2.)
Plaintiff now
moves to set aside dismissal and to reinstate the case only as to
Cross-Complainant DeVual.
Legal
Standard
“Section 473(b)
provides for both discretionary and mandatory relief.¿ [Citation.]”¿ (Pagnini
v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 302.)¿ An application for
relief under this section must be made no more than six months after entry of
the judgment, dismissal, order, or other proceeding from which relief is sought
and must be accompanied by an affidavit of fault attesting to the mistake,
inadvertence, surprise or neglect of the moving party or its attorney. (Code
Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001)
94 Cal.App.4th 130, 143.) In addition, an application for relief under this section
“shall be accompanied by a copy of the answer or other pleading proposed to be
filed herein, otherwise the application shall not be granted.” (Code Civ.
Proc., § 473, subd. (b).) Relief under this section is mandatory when based on
an attorney affidavit of fault as to a resulting dismissal against his or her
own client; otherwise, it is discretionary. (Id.)
Courts have
consistently held that a moving party may obtain relief from a voluntary order
of dismissal under the discretionary relief provision of section 473,
subdivision (b). (Zamora v. Clayborn Contracting Group, Inc. (2002) 28
Cal.4th 249, 255.) Under the voluntary relief provision, the mistake,
inadvertence, surprise, or neglect of the moving party or its attorney must be
shown to be excusable. (Code Civ. Proc., § 473, sub. (b); Kaslavage v. West
Kern County Waster Dist. (1978) 84 Cal.App.3d 529.)
Courts have
found that a mistake or inadvertence by an attorney is only excusable if “‘a
reasonably prudent person under the same or similar circumstances’ might have
made the same error.” (Bettencourt v. Los Rios Community College Dist.
(1986) 42 Cal.3d 270, 276; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674,
682 (attorney error must be “fairly imputable to the client, i.e., mistakes
anyone could have made.”)) Further, “[w]here the mistake is excusable and the
party seeking relief has been diligent, court have often granted relief
pursuant to the discretionary relief provision of section 473 if no prejudice
to the opposing party will ensure. [Citation.]” (Zamora, supra, at p.
258.)
Discussion
On October 18, 2023, the Los Angeles Superior Court ordered dismissal
with prejudice against all parties and causes of action, as requested by Plaintiff’s
filing. (Exh. 2.) Plaintiff’s counsel attests that he filed such request for
dismissal erroneously because he mistakenly selected option “(5)”, which is the
dismissal of the “[e]ntire action of all parties and all causes of action[,]”
instead of option “(1)” which is to dismiss the “[c]omplaint” only. (Exh. 2.)
Such erroneous filing would result in Cross-Complainant DeVual losing his
opportunity to have his case heard on the merits, even though he still
maintained his action against Juanita’s. (Perez-Casillas Decl. ¶ 6.)
As an initial matter, Plaintiff’s motion to set aside was timely filed.
Plaintiff had six months from the date that the dismissal was ordered, October
18, 2023, to seek relief under section 473, subdivision (b). (Code
Civ. Proc., § 473, subd. (b).) Here,
plaintiff’s application for discretionary relief was filed on February 28,
2024, within four months of the date that dismissal was ordered.
Further, the court finds that
Plaintiff has established that the dismissal was a result of Plaintiff’s
counsel’s excusable mistake, inadvertence, surprise, or neglect. In Zamora,
the Court found that an attorney’s mistake was excusable under section 473,
subdivision (b), when he failed to discover a clerical mistake made by a legal
assistant, who typed the word “against” instead of the phrase “in favor of”
when typing an offer pursuant to section 998. (Zamora, supra, at 259;
see also Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237 (attorney’s
mistake was excusable when they mistakenly checked the “with prejudice” instead
of the “without prejudice” box.)) Similarly here, plaintiff’s counsel’s attestations,
under penalty of perjury, suggest that he made a clerical error by incorrectly
selecting to request dismissal as against the entire case, instead of just the
complaint. (Perez-Casillas Decl. ¶ 6.) Like in Zamora,
counsel’s mistake could have been made by anyone, and his failure to spot the
mistake does not render it inexcusable. (Zamora, supra, at 259.)
None
of the defendants or cross-defendants oppose this motion. In supplement,
Juanita’s and Defendant Gerald DeVual stipulated to set aside the October 18,
2023 Request for Dismissal with prejudice. (Stipulation to Set Aside, p.
2:14–18.)
Therefore,
in the interest of justice, the court GRANTS Plaintiff’s motion to set aside
dismissal of this action pursuant to CCP § 473(b).
It
is so ordered.
Dated: September 23, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court