Judge: Michael E. Whitaker, Case: 20STCV30412, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV30412    Hearing Date: January 10, 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 Interinsurance Exchange of the Automobile Club (Plaintiff), by and through its counsel Judi A. Bailey, moves to set aside the Court’s order of April 28, 2022, in which the Court dismissed Plaintiff’s complaint against Defendants Veronica Garza and Roberto Garza (collectively, Defendants) with prejudice.  Defendants oppose the motion.  Plaintiff replies.   

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 April 28, 2022.  Plaintiff then filed their application for relief on October 28, 2022, within six months of the entry of the dismissal.

            Second, Plaintiff seeks to set aside dismissal entered on April 28, 2022, due to the fault of Plaintiff’s former counsel, Salvador Corona.  Plaintiff advances the declaration of their current counsel, Judi A. Bailey, who avers that Plaintiff’s former counsel inadvertently requested dismissal with prejudice of the complaint based on former counsel’s mistaken belief that Plaintiff and Defendants had agreed upon a settlement.  (Declaration of Judi A. Bailey, ¶¶ 3-7.) 

            However, the Court finds Plaintiff has not proffered sufficient competent evidence of attorney fault in support of the motion.  Plaintiff only advances the declaration of Judi A. Bailey (Bailey), who attests to the fault of Salvador Corona (Corona) – not her own.  The Court notes that Corona, not Bailey, made the oral motion to dismiss the case with prejudice at the hearing on April 28, 2022.  Thus, only Corona can attest as to his mistaken belief that a settlement was not reached.  A such, Bailey’s statements as to Corona’s purported fault lacks foundation and amounts to hearsay as Defendants note in their opposition. 

CONCLUSION AND ORDER

            In short, Bailey’s declaration is incompetent evidence.  Absent a declaration from Corona attesting to his own fault, Plaintiff has failed to establish grounds for relief based on an attorney affidavit of fault under Code of Civil Procedure section 473, subdivision (b).

            Therefore, the Court denies Plaintiff’s motion to set aside the dismissal with prejudice.  The Clerk of the Court shall provide notice of the Court’s ruling.