Judge Michelle C. Kim, Case 20STCV41004 2023-04-10 Tentative Ruling

Judge: Michelle C. Kim, Case: 20STCV41004, Date: 2023-04-10 Tentative Ruling

Case Number: 20STCV41004 Hearing Date: April 10, 2023 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MARIAH HENDERSON, ET AL.,

Plaintiff(s),

vs.

YOSEPH SAMSON DEBEBE, ET AL.,

Defendant(s).

)

CASE NO: 20STCV41004

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DISMISSAL

Dept. 31

1:30 p.m.

April 10, 2023

Plaintiff Mariah Henderson filed this action against Defendant Yoseph Samson Debebe (“Defendant”) for damages arising from a motor vehicle accident. An Order to Show Cause Re: Dismissal for Failure to Enter Default (the “OSC”) was set for September 27, 2022. However, after there were no appearances or contact by either party, Plaintiff’s complaint was ordered dismissed without prejudice. (Min. Order, Sept. 27, 2022.)

On September 30, 2022, Plaintiff filed the instant motion to set aside dismissal. Plaintiff asserts the dismissal was the result of Plaintiff’s counsel’s mistake, inadvertence, or excusable neglect. The motion is unopposed. This matter was last heard on February 16, 2023, where it was continued after the Court noted Plaintiff filed proof of service showing Defendant was served with the summons and complaint by substituted service prior to the dismissal, (Proof of Service filed April 18, 2022), but there was no proof of service attached to the instant motion or other evidence showing that Defendant was given proper notice of the hearing.[1]

On April 3, 2023, Plaintiff filed proof of service of the motion and notice of continuance on Defendant.[2]

CCP § 473(b) states in pertinent part:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client…

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)

Here, Plaintiff’s counsel, Steve A. Hoffman (“Counsel”), attests that he did not appear for the OSC because he did not receive notice of the hearing. Counsel’s declaration establishes neglect and mistake in connection with failing to appear at the OSC.

The motion is therefore granted. CCP § 473(b). The action is reinstated. Plaintiff is ordered to serve Defendant with this ruling, and copies of the summons, complaint, and related documents, all in the same manner as the summons. Defendant thereafter is to file its responsive pleading within 30 days.

Plaintiff is ordered to give notice.

PLEASE TAKE NOTICE:

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 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 10^th day of April 2023

Hon. Michelle C. Kim

Judge of the Superior Court

[1] Witkin, Summary of Cal. Procedure (6th Ed. 2022) Proceedings Without Trial [“because setting aside the dismissal means bringing the defendant back into the case, the motion must be made on notice to the defendant, whether or not the defendant has appeared.”], citing McDonald v. Severy (1936) 6 Cal.2d 629 [no authority to set aside dismissal where no notice given to dismissed party]; see also Maxwell v. Cooltech, Inc. (1997) 57 Cal.App.4th 629, 631-32.

[2] Plaintiff was ordered to file proof of service of the motion nine court days before the hearing, but Plaintiff filed the proof of service only five court days before the hearing. Nonetheless, the Court will exercise its discretion to consider the proof of service.