Judge: Michael E. Whitaker, Case: 20STCV38326, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV38326    Hearing Date: October 5, 2022    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 Maria Navarez Alcayde (“Plaintiff”) moves the Court to set aside the Court’s April 5, 2022 order dismissing Plaintiff’s Complaint, 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.)  

Plaintiff provides her counsel’s  declaration in support of the Motion.  In her declaration, Plaintiff’s counsel represents that on November 25, 2020 this matter was removed to federal court, and litigated in federal Court thereafter.  (Barmakszian Decl., ¶¶ 3-5.)  On September 16, 2021, the Parties participated in a court-directed ADR program, but they were unable to reach a settlement.  (Id. at ¶ 5.)  During the ADR proceeding, the Parties discussed and agreed to remand the action to State Court via written stipulation.  (Id. at ¶ 6.)  The federal judge denied the Parties stipulation because it was procedurally deficient, and advised the Parties to dismiss the federal case and refile in State Court.  (Id. at ¶ 7.)  Thereafter, the Parties filed a stipulation with this Court to remand this action, and also filed a stipulation to dismiss the federal case without prejudice.  (Id. at ¶¶ 8-11.)  Plaintiff’s counsel represents that the dismissal should be set aside because of her neglect to notify the Court of the Parties agreement to remand the federal case.

Filing a copy of the notice of removal with the clerk of the court “shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”  (28 USC § 1446, subd. (d).)  “[T]he statute deprives the state court of further jurisdiction over the removed case and that any post-removal actions taken by the state court in the removed case action are void ab initio.” (Ackerman v. ExxonMobil Corp. (4th Cir. 2013) 734 F.3d 237, 249; Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st Cir.1983) [“[A]ny action taken by the Puerto Rico court after removal was effected was a nullity anyway, with or without the order against further proceedings.”]; Spanair S.A. v. McDonnell Douglas Corp. (2009) 172 Cal.App.4th 348, 356 [“the state court's jurisdiction is suspended when the defendant seeking removal gives notice to the state court clerk, and it is reacquired when the district court clerk gives notice to the state court clerk in the form of a certified copy of the remand order”].)  A state court may resume jurisdiction only if and when the case is remanded by the federal court.  (28 USC § 1446, subd. (d); see also Limehouse v. Hulsey (2013) 404 S.C. 93, 108, 744 S.E.2d 566, 574 [“the federal court is not divested of jurisdiction until the remand order . . . is certified and mailed by the clerk of the district court”].) 

On November 25, 2020, Defendant filed a notice of removal of the state court action to federal court.  Upon the filing of the notice of removal, this Court lacked jurisdiction to act in the state court action until the federal court remanded the action to this Court which the federal court has not done so. 

Thus, under the circumstances, this Court was without authority to issue the order of dismissal on April 5, 2022.  Therefore, the Court, on its own motion, will vacate the order of dismissal entered on April 5, 2022[1] and will take no further action until the federal court remands the action to this Court. 

The Clerk of the Court shall provide notice.