Judge: Michelle C. Kim, Case: 21STCV20248, Date: 2023-03-22 Tentative Ruling

Case Number: 21STCV20248    Hearing Date: March 22, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Desaray Shaw (“Plaintiff”) filed this action against Defendant U-Haul (“Defendant”) alleging causes of action for general negligence and products liability.  Plaintiff alleges the U-Haul truck she rented from Defendant had faulty brakes, causing her to become involved in a motor vehicle accident on June 1, 2019.  Plaintiff alleges Defendant had a duty to and failed to properly inspect their vehicle prior to renting it to her.

            On March 16, 2022, Defendant’s motion to compel arbitration and stay proceedings was granted.  On May 18, 2022, Plaintiff’s then attorney’s, Lance Kirk (“Kirk”), motion to be relieved as counsel for Plaintiff was granted.  An Order to Show Cause Re: Dismissal for Failure to Complete Arbitration (the “OSC”) was scheduled for July 11, 2022.  At the OSC, there was no appearance or contact by Plaintiff, and Plaintiff’s complaint against Defendant was ordered dismissed.  (Min. Order, July 11, 2022.) 

            On January 11, 2023, Plaintiff filed the instant motion to set aside the dismissal.  Defendant opposes the motion, and Plaintiff filed a reply.

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 defendant failed to make a timely response.  Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the Defendant 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.) 

Six months is defined as half a year, or 182 days. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 903 [“We therefore conclude that as employed in section 473 of the Code of Civil Procedure six months is the equivalent of half a year and, under section 6803 of the Government Code, is the equivalent of 182 days.”].)

Here, Plaintiff asserts that she failed to appear at the OSC because of her excusable neglect and mistake.  Plaintiff provides that she had no notice and was unaware of the proceedings against her.  Plaintiff states that she was living in Texas and the notice, communications and rulings concerning this action were being sent to Plaintiff’s old and no longer current Los Angeles address.  Plaintiff attests that she was unaware of the proceedings against her until after the action was dismissed.  Further, Plaintiff contends that beginning in January 2022, Plaintiff attempted to contact her prior counsel, Kirk, to discuss the status of the case, but Plaintiff was unable to reach Kirk.  Additionally, Plaintiff asserts that Kirk never informed Plaintiff of Defendant’s motion to compel arbitration or communicated with Plaintiff about the motion to be relieved as counsel.  Plaintiff contends that the dismissal was thus also the result of extrinsic fraud and mistake. 

            In opposition, Defendant contends that Plaintiff fails to demonstrate that the dismissal of her case was the result of excusable neglect or mistake.  Defendant contends that Plaintiff failed to act diligently and that there is no justification for setting aside the dismissal.  Defendant contends that Plaintiff failed to file a declaration of fault from Kirk, and that there is no evidence that Plaintiff was personally neglectful. 

            In reply, Plaintiff argues that Defendant does not contend that it will be prejudiced if the motion is granted.  Plaintiff further asserts that a declaration from Kirk is not required to obtain relief under the discretionary provision of CCP § 473(b), and Plaintiff argues that she acted with diligence in bringing her motion. 

            Plaintiff’s motion was timely filed within six months of the dismissal entered on July 11, 2022.  Moreover, Plaintiff’s declaration provides that in January 2022, she attempted to reach her former counsel but was unable to communicate with him or receive any updates on the status of her case.  (Mot. Shaw ¶ 5.)  Plaintiff was further unaware of Defendant’s motion to compel arbitration or Kirk’s motion to be relieved as counsel of record for Plaintiff, and that after Kirk’s motion to be relieved as counsel was granted, the order was never served on Plaintiff.  (Id. at ¶¶ 6-7, 11.)  The Court notes that Kirk was ordered to give notice of the order granting his motion to be relieved as counsel for Plaintiff.  (Min. Order, May 18, 2022.)  Although Kirk filed a notice of the order granting the motion to be relieved on June 8, 2022, the proof of service attached to the motion shows that it was served only on defense counsel and the Clerk of the Court.  The proof of service does not show service on Plaintiff.  Kirk then forwarded Plaintiff’s file to her on July 10, 2022, but Plaintiff did not receive it until several days later.  (Mot. Shaw ¶ 13.)  Plaintiff was unaware of the OSC on July 11, 2022, and did not appear.  (Id. at ¶ 14.)  Plaintiff then contacted her current counsel on August 19, 2022, who later determined that the action had been dismissed.  (Id. at ¶¶ 15-16.) 

            Plaintiff’s declaration establishes she failed to appear at the OSC due to her excusable neglect and mistake.  At the time of the OSC, Plaintiff was in pro per, but she was unaware of the OSC.  Plaintiff’s prior counsel allegedly failed to communicate with Plaintiff about the status of her case, and there is no evidence that Plaintiff was ever served with the order granting Kirk’s motion to be relieved as counsel prior to the OSC.  Furthermore, Plaintiff acted diligently in seeking relief as she contacted her current counsel in August 2022 about representation in this matter.  Plaintiff’s current counsel was at home due to Covid but investigated the matter when they returned to work.  Additionally, as Plaintiff argues, Defendant does not identify any prejudice they suffered as a result of any delay by Plaintiff in filing the instant motion. 

            Based on the foregoing, Plaintiff’s Motion to Set Aside the dismissal is granted.  The Court sets a Status Conference re: Arbitration for _____________ at 8:30 a.m. in this Department. 

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 22^nd day of March 2023