Judge: Michael E. Whitaker, Case: 20STCV45179, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV45179    Hearing Date: August 10, 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 Zurbano Espinosa through her legal representative, Matthew Stearns (“Counsel”), move to set aside the Court’s order of May 24, 2022, in which the Court dismissed Plaintiff’s complaint without prejudice for Plaintiff’s failure to appear for non-jury trial.  The motion is unopposed. 

ANALYSIS

Per Code of Civil Procedure section 473, subdivision (b), a court “may, upon any terms as may be just, 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 advances Counsel’s declaration.  Counsel avers that he failed to appear for non-jury trial due to a calendaring error.  (Declaration of Matthew Stearns, ¶ 20.)  The Court finds Counsel demonstrates his failure to appear for non-jury trial was a result of mistake, inadvertence, and neglect on his part. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal, and vacates the order of May 24, 2022, dismissing Plaintiff’s complaint.   

            Notwithstanding, the Court finds that Plaintiff has not filed a proof of service establishing service of the summons and complaint on Defendants within 60 days of the filing of the complaint.  (See Cal. Rules of Court, rule 3.110(b).)  Therefore, the Court sets an Order to Show Cause re why monetary sanctions should not be imposed due to Plaintiff’s failure to file a proof of service of the summons and complaint for OCTOBER 12, 2022 at 8:30 A.M. in Department 32.   (See Cal. Rules of Court, rule 3.110(f).)   Plaintiff must file any responsive papers at least five calendar days before the Order to Show Cause.  (See Cal. Rules of Court, rule 3.110(i).)  The Court may impose monetary sanctions against Plaintiff or Counsel for Plaintiff, at the time of the Order to Show Cause if Counsel for Plaintiff or Plaintiff fail to appear, or fail to give good cause for the delay in serving the summons and complaint.  (See Code Civ. Proc., §§ 128, 177.5; Cal. Rules of Court, rule 2.30.)  In the alternative, the Court sets a Trial Setting Conference on OCTOBER 12, 2022 at 8:30 A.M. in Department 32 if  a proof of service establishing service of the summons and complaint is filed before the Order to Show Cause. 

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