Judge: Michael E. Whitaker, Case: 19STCV32048, Date: 2023-05-05 Tentative Ruling

Case Number: 19STCV32048    Hearing Date: May 5, 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

              Plaintiff Eluvia Alvarez (Plaintiff) through counsel, Paul S. Ahn (Counsel), moves to set aside the Court’s order of February 16, 2023, in which the Court dismissed Plaintiff’s complaint, without prejudice.  Defendant Los Angeles County Metropolitan Transportation Authority (Defendant) opposes the motion.  

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, Plaintiff’s motion is timely.  The entry of dismissal was made on February 16, 2023.  Plaintiff then filed the motion for relief on February 24, 2023, within six months of the entry of the dismissal.

            Second, Plaintiff seeks to set aside the dismissal entered on February 16, 2023, due to the fault of Plaintiff’s counsel.  Plaintiff’s motion for relief is accompanied by the declaration of Counsel, which states the following:

·         I was informed of the dismissal by Plaintiff's trial counsel, David Y. Nakatsu, after 10:00 AM when he appeared for trial. After reviewing the circumstances of the dismissal, I determined that the dismissal was the result of an internal scheduling mistake and miscommunication between Plaintiff's counsel's office and the independent associate trial counsel who was not part of JB Law Group.      

·         JB Law Group, through mistake and/or inadvertence and/or excusable neglect, informed trial counsel to appear ready and able for trial at 10:00 AM. This was a scheduling error from the office and coordination between my office and the independent trial counsel was miscommunicated. Trial counsel DID appear on the trial date at 10:00 AM, ready and able for trial.

(Declaration of Paul S. Ahn, ¶¶ 2-3.)

            In opposition, Defendant contends Plaintiff’s motion should be denied on the basis that Plaintiff has failed to establish her failure to attend the trial date on February 16, 2023, was due to her own Counsel’s mistake.  Defendant argues Plaintiff’s inadvertent dismissal was caused rather by the mistake and inadvertence of an unassociated attorney, David Y. Nakatsu (Nakatsu), and thus relief under Code of Civil Procedure section 473, subdivision (b), is inapplicable.  

            However, as Counsel explains in his declaration, it was Counsel’s office who informed Nakatsu of the incorrect trial hearing time, thus causing Plaintiff’s failure to appear at trial at the correct time.  The Court finds this is sufficient to establish that the dismissal entered on February 16, 2023 was due to the fault of Plaintiff’s Counsel. 

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

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside dismissal of the complaint and orders the dismissal entered on February 16, 2023, vacated.  Further, the Court sets a Trial Setting Conference on June 9, 2023 at 8:30 AM in Department 32. 

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