Judge: Michael E. Whitaker, Case: 20STCV12782, Date: 2023-05-22 Tentative Ruling

Case Number: 20STCV12782    Hearing Date: May 22, 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 Gustavo Galvan (Plaintiff) through counsel, Arturo T. Salinas (Counsel), moves to set aside the Court’s order of June 17, 2022, in which the Court dismissed the Complaint against Defendants Mariscos Tuxpan Nayarit, Inc. and Enrique Preciado (collectively, Defendants), without prejudice.  The motion is unopposed.

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.) 

            Here, Plaintiff filed the instant motion on April 10, 2023, 9 months and 24 days, after the Court dismissed Plaintiff’s complaint.  As such, it is untimely under Section 473. 

            In addition, the Court finds that the instant motion is Plaintiff’s third attempt to seek relief from the June 17, 2022 order dismissing the complaint.  The prior attempts were fruitless as set forth below: 

            First Attempt:  Plaintiff filed a Motion for Relief from Order of Dismissal on December 13, 2022 with a hearing scheduled for February 6, 2023.  On February 6, 2023, the Court took the motion off calendar as neither Plaintiff nor counsel for Plaintiff appeared for the hearing or contacted the Court.

            Second Attempt:  Plaintiff filed a Renewal and Re-Submission of Notice of Motion and Motion for Relief from Order of Dismissal on March 14, 2023 with a hearing scheduled for April 24, 2023.  On April 24, 2023, the Court took the motion off calendar as neither Plaintiff nor counsel for Plaintiff appeared for the hearing or contacted the Court.  Moreover, the Court notes that this second motion was untimely under Section 473 (8 months, 25 days after the order of dismissal was entered). 

            And equally important, the Court finds that counsel for Plaintiff, Arturo T. Salinas, provides no information in his declaration explaining why neither Plaintiff nor counsel for Plaintiff failed to appear for the hearings on the prior motions, or at the very least, contact the Court.    

CONCLUSION AND ORDER

            Therefore, the Court denies Plaintiff’s motion to set aside the Court’s June 17, 2022 dismissal of Plaintiff’s complaint as untimely.

The Clerk of the Court shall provide notice of the Court’s ruling.