Judge Melvin D. Sandvig, Case 22CHCV00773 2023-02-16 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00773, Date: 2023-02-16 Tentative Ruling

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Case Number: 22CHCV00773 Hearing Date: February 16, 2023 Dept: F47

Dept. F47

Date: 2/16/23

Case #22CHCV00773

MOTION TO VACATE DISMISSAL

DEFENDANT MVM LIMITED PARTNERSHIP

Motion filed on 1/17/23.

MOVING PARTY: Plaintiffs Rocio Mejia Zamora, Michael Zamora, Anthony Mejia, Iberson Ortega by and through his guardian ad litem, Rocio Mejia Zamora

RESPONDING PARTY: Defendant MVM Limited Partnership

RELIEF REQUESTED: An order to reinstate Defendant MVM LP as a party to this case and to vacate the order of dismissal entered on 10/27/22 in favor of MVM LP.

RULING: The motion is denied.

On 9/20/22, Plaintiffs Rocio Mejia Zamora, Michael Zamora, Anthony Mejia, Iberson Ortega by and through his guardian ad litem, Rocio Mejia Zamora (Plaintiffs) filed their original complaint for: (1) Breach of Warranty of Habitability; (2) Negligent Maintenance of Premises; (3) Nuisance; (4) Breach of Quiet Enjoyment; (5) Intentional Infliction of Emotional Distress; (6) Unruh Civil Rights Act, Civil Code 51; (7) Unfair Competition, Business & Professions 17200-17210 against Defendants Mountain View Manor Sylmar LP; Pavilion Mountain View LLC; MVM Limited Partnership; Bertram Partners Inc.; and Does 1-10. On 9/22/22, Plaintiffs filed their First Amended Complaint alleging the same seven causes of action against the same defendants.

On 10/27/22, Plaintiffs dismissed Defendant MVM Limited Partnership (MVM) without prejudice due to the mistaken belief that MVM did not own the property at any time relevant to their claims (Plaintiffs attorney was informed that MVM had sold the property in January 2019). Thereafter, Plaintiffs claim that “upon inquiry” they discovered “that [the] actual effective date of the violation is January 2018 and continuing to date.” (Oronsaye Decl. ¶5). Plaintiffs had alleged that the habitability conditions complained of occurred from January 2019 to date, but now claim they began in January 2018. (See Oronsaye Decl. ¶¶4-7).

On 11/8/22, Plaintiffs filed an ex parte application seeking an order to reinstate Defendant MVM LP as a party to this case and to vacate the judgment of dismissal entered on 10/27/22 in favor of MVM LP. Alternatively, Plaintiffs requested an order shortening time to hear Plaintiff’s Motion to Vacate Judgment and/or Reset This matter on the court’s calendar. On 11/10/22, the Court denied the ex parte application finding that Plaintiffs had failed to establish that ex parte relief was warranted. (See 11/10/22 Minute Order). The ex parte application was denied without prejudice to Plaintiffs filing a properly reserved, noticed and supported motion. Id. Plaintiffs’ counsel was also warned that future filings must comply with the electronic bookmarking requirements set forth in the California Rules of Court and 5/3/19 First Amended General Order. Id.

On 12/19/22, Plaintiffs’ made another ex parte application for an order shortening time for hearing on their motion for leave to file a Second Amended Complaint. The application was granted in part with the Court specially setting the hearings on a Motion to Set Aside Dismissal and Motion for Leave to File Second Amended Complaint for 2/16/23. (See 12/19/22 Minute Order).

On 1/17/23, Plaintiffs filed (served on 1/11/23) the instant motion seeking an order to reinstate Defendant MVM LP as a party to this case and to vacate the order of dismissal entered on 10/27/22 in favor of MVM LP. Despite being warned of the bookmarking requirements in the Court’s 11/10/22 Minute Order, Plaintiffs’ counsel has, again, failed to bookmark the declaration, exhibits and proof of service attached to the motion. On 2/3/23, MVM LP filed and served an opposition to the motion. Plaintiffs have not filed a reply in response to the opposition.

Plaintiffs rely on CCP 473(b) as authority for the relief requested stating that on any terms as may be just, the Court has authority to relieve a party or a party’s legal representative from a judgment, dismissal, order or other proceeding taken against the party because of the party’s mistake, inadvertence, surprise or excusable neglect. (See Motion, p.5:15-25). Since Plaintiffs never argue that relief is mandatory based on attorney fault, it appears that they are relying on the discretionary provision for relief under CCP 473(b).

Even if Plaintiffs were relying on the mandatory provision, such relief is not available due to the voluntary dismissal of MVM LP filed by Plaintiffs. See Zamora (2002) 28 C4th 249, 254; Gotschall (2002) 96 CA4th 479, 483; Jackson (2019) 32 CA5th 166, 173-174; State Farm Fire & Casualty Co. (2001) 90 CA4th 600, 608-610 fn.6. Even if mandatory relief was available for voluntary dismissals, Plaintiffs have failed to establish that the voluntary dismissal of MVM LP was the fault of their attorney.

The motion vaguely states that “[t]he facts that necessitate the setting aside of the default [should be dismissal] order and reinstatement of Defendant MVM LP, are primarily based on information that became available to Plaintiff’s Counsel’s after the FAC had been filed and Defendant MVM LP had been dismissed from the case without prejudice. It turned out upon further inquiry that the causes of action asserted by the Plaintiffs arose effective January 2018.” (See Motion, p.5:28-p.6:4). The declaration of Plaintiffs’ attorney states “Plaintiff has now found out upon inquiry that that actual effective date of the violations is January 2018 and continuing to date.” Oronsaye Decl. ¶5). Based on the foregoing, it appears that Plaintiffs provided their attorney with the incorrect date as to when their causes of action accrued.

Plaintiffs provide no facts to explain the mistake as to when their causes of action accrued and/or how the error constitutes excusable neglect. Seemingly, only Plaintiffs would know when the conditions at their residence alleged in their complaint occurred. Therefore, it is unclear as to whom Plaintiffs made an inquiry to determine the conditions alleged in the complaint began in 2018 rather than 2019 as alleged. (See Oronsaye Decl. ¶5). Further, Plaintiffs’ proposed Second Amended Complaint, alleges that “[t]he habitability claims in this complaint occurred from January 2017 to date.” (See proposed Second Amended Complaint ¶16attached to Motion for Leave to Amend). As such, it still appears that Plaintiffs are unclear as to when their claims accrued.

Based on the foregoing, Plaintiffs have failed to show that they are entitled to discretionary relief based on either their or their attorney’s mistake, inadvertence, surprise and/or excusable neglect.

MVM LP’s Request for Judicial Notice is denied as the Court finds that the information is not necessary for the determination of this motion.

Dept. F47

Date: 2/16/23

Case #22CHCV00773

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Motion filed on 1/11/23.

MOVING PARTY: Plaintiffs Rocio Mejia Zamora, Michael Zamora, Anthony Mejia, Iberson Ortega by and through his guardian ad litem, Rocio Mejia Zamora

RESPONDING PARTY: Defendant MVM Limited Partnership

RELIEF REQUESTED: An order granting Plaintiffs leave to file a Second Amended Complaint.

RULING: The motion is denied.

On 1/11/23, Plaintiffs filed and served the instant motion seeking an order granting Plaintiffs leave to file a Second Amended Complaint. Despite being warned of the bookmarking requirements in the Court’s 11/10/22 Minute Order, Plaintiffs’ counsel has, again, failed to bookmark the declaration, exhibits and proof of service attached to the motion. On 2/3/23, MVM LP filed and served an opposition to the motion. Plaintiffs have not filed a reply in response to the opposition.

Plaintiffs have failed to comply with the requirements of CRC 3.1324. Plaintiffs do not state what allegations from the previous pleading are proposed to be deleted and what allegations are proposed to be added with the precise location of the deletions and/or additions as required. CRC 3.1324(a)(2), (3). Additionally, the declaration filed in support of the motion fails to adequately explain when/how the facts giving rise to the amended allegations were discovered. CRC 3.1324(b).

Also, the motion and proposed Second Amended Complaint are inconsistent. The motion indicates that the amendment is necessary to correct the date the alleged conditions began – i.e., to change the date from 2019 to 2018. (See Motion, p.2:18-20, p.6:18-19, p.8:5-9; Oronsaye Decl. ¶5). However, the proposed Second Amended Complaint alleges that the “[t]he habitability claims in this complaint occurred from January 2017 to date.” (See Motion, Ex.B - proposed Second Amended Complaint ¶¶16, 33). As such, it still appears that Plaintiffs are unclear as to when their claims accrued. Plaintiffs also fail to explain how/why they were unaware of the date their claims accrued. (See Oronsaye Decl. ¶5). Further, Plaintiffs make other changes to their pleading which they do not mention in the motion (i.e., adding Bertram Partners Inc. back as a defendant; allegations regarding children removed). (See proposed SAC ¶22; FAC ¶¶5, 10); CRC 3.1324(a)(2), (3).

MVM LP’s Request for Judicial Notice is denied as the Court finds that the information is not necessary for the determination of this motion. Additionally, it cannot be determined from the information in the Request for Judicial Notice and the proposed allegations that Plaintiffs’ claims are barred by the settlement of either of the prior cases between Plaintiff Rocio Mejia and MVM LP.