Judge: Michael E. Whitaker, Case: 21STCV03717, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV03717    Hearing Date: September 15, 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 Hilario Flores moves to set aside the Court’s order of March 17, 2022, in which the Court dismissed Plaintiff’s complaint without prejudice as a terminating sanction for Plaintiff’s failure to obey the Court’s orders of October 18, 2021.  Defendant Williams Ramirez opposes the motion.

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, on October 18, 2021, the Court ordered Flores to serve verified responses, without objections to Defendant’s requests for production of documents, special interrogatories, and form interrogatories, and to pay monetary sanctions in the amount of $712 to Defendant within 30 days of notice of the Court’s orders. (See October 18, 2021 Minute Order.) 

Plaintiff advances the declaration of former counsel for Plaintiff, Robert Bazikyan (“Bazikyan”).  Bazikyan avers that despite having received Defendant’s service of the subject discovery requests and notice of the Court’s orders of October 18, 2021, his office failed to contact Plaintiff and notify him of Defendant’s discovery requests and the related motions and orders by the Court.  (Declaration of Robert Bazikyan, ¶¶ 5, 7, 10.)  Bazikyan further states he was dilatory in delivering Plaintiff’s case file to Plaintiff’s new attorney and did not do so until March 14, 2022.  (Declaration of Robert Bazikyan, ¶¶ 11-12.) 

In opposition, Defendant argues that Plaintiff fails to establish that Bazikyan’s mistake, inadvertence, surprise, or neglect was the sole cause of the dismissal of Plaintiff’s complaint.  In the alternative, Defendant requests an award of his reasonable expenses incurred in connection with the motion to compel Plaintiff’s discovery response, the motion for terminating sanctions, and the instant opposition. 

Where a party is represented by several attorneys, an affidavit by the attorney whose negligence was the proximate cause of the default or dismissal is sufficient for relief under Section 473, subdivision (b).  (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.)  Accordingly, the Court finds Bazikyan demonstrates Plaintiff’s failure to timely respond to the subject discovery requests and obey the Court’s orders of October 18, 2021, was the result of mistake, inadvertence, and neglect on his part. 

            Whenever relief is granted on an attorney’s affidavit of fault, the Court shall “direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  (Code Civ. Proc., § 473, subd. (b).)  Thus, the Court will direct Valley Law Firm to pay reasonable compensatory legal fees and costs to Defendant in the amount of $1,330, which represents ten hours of attorney time to prepare the motion for terminating sanctions, and the instant opposition, and attend the hearing at $133 per hour.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside the Order of Dismissal, and vacates the order of March 17, 2022, dismissing Plaintiff’s complaint.   

Further, the Court orders Valley Law Firm to pay monetary sanctions in the amount of $1,330 to Defendant, by and through counsel for Defendant, within 30 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.