Judge: Michael E. Whitaker, Case: 21STCV32839, Date: 2023-05-25 Tentative Ruling

Case Number: 21STCV32839    Hearing Date: May 25, 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 Noel Lawrence (Plaintiff) through counsel, Gilbert Quinones (Counsel), moves to set aside the Court’s order of March 7, 2023, in which the Court dismissed the entire action without prejudice. (See Order of Dismissal filed March 7, 2023.)  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.) 

            First, Plaintiff’s motion is timely.  The entry of dismissal was made on March 7, 2023.  Plaintiff then filed her application for relief on March 14, 2023, within six months of the entry of the dismissal.  (See Code Civ. Proc., § 1013, subd. (a); see also Cal. Rules of Court § 1.10, subds. (a), (b).)

            Second, Plaintiff seeks to set aside the dismissal entered on March 7, 2023, due to the fault of Plaintiff’s counsel.  Plaintiff’s application for relief is accompanied by the declaration of Plaintiff’s counsel, Gilber Quinones (Counsel).  Counsel avers to the following:

·       Since Covid we have had an extreme amount of turnover in the Litigation Paralegal position in my office.  We have had five (5) Paralegals in that position since that time.  They have left for personal, health, or other reasons;

·       The most recent Paralegal left on February 10, 2023.  The new Paralegal did not start until one week after.  The new Paralegal and I are in the process of reviewing all files to make sure there are no issues;

·       As a result of the turnover in the position, the court hearing of March 7, 2023 was not calendared.  As a result there was no appearance by my office.

(Declaration of Gilber Quinones, ¶¶ 2-4.)

Based on the timely request to vacate the dismissal supported by an affidavit admitting to attorney fault, the Court finds Plaintiff’s application to set aside dismissal conforms with the requirements under Code of Civil Procedure section 473, subdivision (b).

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion to set aside dismissal and orders the dismissal entered on March 7, 2023 vacated.

            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 proofs of service of the summons and complaint for JULY 21, 2023 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 JULY 21, 2023 at 8:30 A.M. in Department 32 if  a proof(s) 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.