Judge: Michelle C. Kim, Case: 19STCV09897, Date: 2023-08-08 Tentative Ruling

Case Number: 19STCV09897    Hearing Date: August 8, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

1. Background Facts 

On March 21, 2019, Plaintiff, Prudencio Manjarrez (“Plaintiff”), filed this action against Defendants Zoilo Gonzalez Lucero, Lincoln Transportation Services, Inc., and Green Line Express Services, Inc. for damages arising from a motor vehicle incident involving a detached trailer on the freeway.   

On August 8, 2022, this matter was called for an Order to Show Cause re: Dismissal for Failure to File Default Judgment, and after no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice pursuant to CCP § 583.410.  (Min. Order, Aug. 8, 2022.)   

On January 10, 2023, Plaintiff filed the instant motion to set aside the dismissal.   

2. Motion to Set Aside Default 

CCP §473(b) provides, in pertinent part: 

The 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. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … 

A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response.  Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)  Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.  (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)   

Here, Plaintiff’s counsel (“Counsel”) provides that he was late to the hearing due to traffic and that he stopped to aid a motorist whose car had a flat tire. (Mot. Decl. Quigg, ¶ 4.) As such, Counsel avers he was only 20 minutes late, and that he had left his cell phone at home. (Ibid.) Because Plaintiff timely filed this instant motion within six months of dismissal, and establishes dismissal was the result of Plaintiff’s counsel’s excusable neglect for failure to appear due to traffic and not calling in due to not having his cell phone, the motion to set aside the dismissal is granted and the action is reinstated.   

To date, Plaintiff has not obtained entry of default since the last rejection on August 20, 2021.  Therefore, the Court sets an Order to Show Cause re: Default Judgment for _____________________.  Given the age of this case, Plaintiff must move expeditiously in seeking a default judgment against Defendants.   

Plaintiff is ordered to give notice.   

PLEASE TAKE NOTICE: 

·         The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance. 

·         Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

·         If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

·         Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

·         If the parties neither submit nor appear at the hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 8^th day of August 2023