Judge: Michael E. Whitaker, Case: 18STCV09206, Date: 2023-01-20 Tentative Ruling

Case Number: 18STCV09206    Hearing Date: January 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Cross-Complainant Katherine Keller (Cross-Complainant) through counsel, Anthony W. Willoughby (Counsel), move to set aside the Court’s order of October 28, 2022, in which the Court dismissed the Cross-complaint against Cross-Defendant Jeanette Ann Bisno (Cross-Defendant), without prejudice.  Cross-Defendant opposes the motion.  Cross-Complainant replies.    

JUDICIAL NOTICE

            The Court grants Cross-Defendant’s requests for judicial notice.

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” In addition, a court must vacate a default or dismissal when a motion for relief under Section 473, subdivision (b) is filed timely and accompanied by an attorney’s sworn affidavit attesting to the attorney’s mistake, inadvertence, surprise or neglect “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]).  “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.) 

            First, Cross-Complainant’s motion is timely.  The entry of dismissal was made on October 28, 2022.  Cross-Complainant then filed their application for relief on November 14, 2022, within six months of the entry of the dismissal.

            Second, Cross-Complainant seeks to set aside the dismissal entered on October 28, 2022, due to the fault of Cross-Complainant’s counsel.  Cross-Complainant’s application for relief is accompanied by the declaration of Cross-Complainant’s counsel, Anthony Willoughby (Counsel), stating that due to Counsel’s involvement in two other trials during the same time period as the trial set for the underlying case, Counsel was forced to find coverage for all other appearances.  (See Declaration of Anthony Willoughby, ¶¶ 2-6.)  Counsel mistakenly believed that he had all matters covered and unbeknownst to himself failed to book coverage for the instant matter.  (See Declaration of Anthony Willoughby, ¶ 7.)  Counsel recognizes that it was his and his office’s calendaring and scheduling error which resulted in the dismissal of Cross-Complainant’s complaint as to Cross-Defendant. (See Declaration of Anthony Willoughby, ¶ 8-10.)

            In opposition, Cross-Defendant argues that the subject dismissal did not actually occur because of the reasons set forth by Counsel.  Cross-Defendant attests that no attorneys within Counsel’s firm had trial appearances scheduled for October 28, 2022, and avers that it was Counsel’s tactical decision to avoid the October 28, 2022 trial for the instant case so that Counsel could seek relief through the instant motion.

            In reply, Cross-Complainant confirms that in fact Counsel and the remaining attorneys of his firm Willoughby & Associates were involved in multiple trials during the same period as the trial for this case, resulting in Counsel inadvertently missing the October 28, 2022 trial.

            Based on the timely request to vacate the dismissal supported by an attorney affidavit admitting to attorney fault, the Court finds Cross-Complainant’s application to set aside dismissal conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

Whenever relief is granted on an attorney’s affidavit of fault, the Court shall “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc., §¿473, subd. (b).)  Thus, the Court will direct Anthony W. Willoughby of Willoughby & Associates to pay reasonable compensatory legal fees and costs to Cross-Defendant in the amount of $2,000which represents 8 hours of attorney time to prepare for trial on October 28, 2022, as well as draft the instant opposition, and attend the hearing at $250 per hour. 

CONCLUSION AND ORDER

            Therefore, the Court grants Cross-Complainant’s motion to set aside dismissal and orders the dismissal entered on October 28, 2022 vacated.

            Further, the Court orders Anthony W. Willoughby of Willoughby & Associates to pay monetary sanctions in the amount of $2,000 to Cross-Defendant, by and through counsel for Cross-Defendant, within 30 days of notice of the Court’s orders.

            Further, the Court sets a Trial Setting Conference for February 3, 2023 at 8:30 AM in Department 32, and orders counsel for Cross-Complainant and Cross-Defendant to meet and confer regarding a new trial date in advance of the Trial Setting Conference. 

Cross-Complainant shall provide notice of the Court’s ruling and file a proof of service of such.