Judge: Michael E. Whitaker, Case: 19STCV46140, Date: 2023-03-29 Tentative Ruling

Case Number: 19STCV46140    Hearing Date: March 29, 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 Barbara Gail Turner (Plaintiff) sued Defendants Victor Luna and Alfredo Rodriguez (Defendants) for negligence, negligence per se, and negligent entrustment in connection with an auto accident that occurred on December 22, 2017. The trial of this matter was scheduled for February 7, 2023. Plaintiff’s counsel, Ike E. Orjiakor, was late when the matter was called for trial. Defendant’s counsel orally moved to dismiss the case, which the Court granted. Plaintiff now moves the Court to set aside the dismissal.  Defendants oppose 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.) 

            Plaintiff moves to have the dismissal vacated due to Plaintiff’s counsel having suffered a flat tire on his way to the courthouse that morning, which rendered him late for trial call. Plaintiff’s counsel has provided pictures purportedly evidencing the flat tire. (Orjiakor Decl., Ex. A.) Plaintiff contends that even though the matter was dismissed without prejudice, she would suffer irreparable harm if the dismissal was not vacated because the statute of limitations has passed on Plaintiff’s claim, thus barring her from filing a new action.

            In opposition, Defendants argue that Plaintiff’s counsel’s conduct is not the result of excusable neglect, as purportedly evidenced by other instances of his tardiness or failure to timely comply with pretrial matters before the February 7, 2023 trial date. Defendants alternatively request compensation in the amount of $1000 under Code of Civil Procedure section 473 for having opposed Plaintiff’s motion.  Plaintiff did not file a reply.

            The Court finds that relief under Code of Civil Procedure section 473 is warranted here. Plaintiff’s motion was timely filed since it was filed the same day as the dismissal and therefore well within the six-month limit.

            Plaintiff’s counsel has adequately demonstrated that his failure to appear at trial call on February 7, 2023 was due to an unexpected flat tire his car suffered on the way to the courthouse that morning. (Orjiakor Decl., ¶¶ 4-8.) Ex. A.) The Court also agrees that Plaintiff would suffer irreparable harm if the dismissal were not vacated due to the statute of limitations on her claims having lapsed (see Civ. Proc. Code, § 3335.1) especially when in this instance the dismissal was occasioned by her attorney’s failure to appear and not because of Plaintiff’s actions. Despite Plaintiff’s counsel’s apparent pattern of tardiness and non-compliance in prior matters, public policy favors adjudication of claims on their merits, (GC Brothers Entertainment LLC v. Alcoholic Beverage Control Appeals Bd. (2022) 84 Cal.App.5th 1019, 1031). Therefore, the Court grants the motion.

            As for Defendants’ requested compensation, the Court agrees with Defendants that they should be compensated because of Plaintiff’s counsel’s conduct in this matter. Accordingly, the Court awards Defendants $500 per Code of Civil Procedure section 473 to be paid by Plaintiff’s counsel.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s Motion to Vacate Dismissal pursuant to Code of Civil Procedure Section 473, and VACATES the Order of Dismissal entered on February 7, 2023.   

The Court further orders Plaintiff’s counsel to pay Defendants $500 pursuant to Code of Civil Procedure section 473 on or before April 12, 2023.

The Court further orders as follows:  Trial is set for May 3, 2023 at 8:30 A.M. in Department 32.  All discovery remains closed and the pre-trial motion cut off remains in effect.  All trial counsel shall appear in person on May 3, 2023 for trial with the trial and exhibit binders in full compliance with the Standing Order of the Personal Injury Hub Courts and the California Rules of Court. 

Plaintiff shall provide notice of the Court’s orders and file a proof of service regarding the same.