Judge: Michelle C. Kim, Case: 21STCV23652, Date: 2023-09-07 Tentative Ruling

Case Number: 21STCV23652    Hearing Date: September 7, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

SARGIS JAYTAYAN, 

Plaintiff(s), 

vs. 

 

LOS ANGELES COUNTY METROPOLITAN TRANSIT AUTHORITY, ET AL., 

 

Defendant(s). 

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      CASE NO: 21STCV23652 

 

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL 

 

Dept. 31 

1:30 p.m.  

September 7, 2023 

 

I. Background Facts 

On June 25, 2021, Plaintiff Sargis Jaytayan (“Plaintiff”) filed this action against Defendants Los Angeles County Metropolitan Transit Authority and Israel Lopez-Buch for damages arising from a bus v. motor vehicle accident.   

On December 23, 2022, this matter was called for a non-jury trial, and after no appearances or contact by either party, the Court dismissed Plaintiff’s complaint without prejudice.(Min. Order, Dec. 23, 2022.)   

On January 23, 2023, Plaintiff filed the instant motion to set aside the dismissal.   

 

II. 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”) avers that his office never received the clerk’s Standing Order re Personal Injury Procedure in which the dates for the Final Status Conference (“FSC”), trial date, and Order to Show Cause re: Dismissal (“OSC”) was provided. (Decl. Karapetian, ¶¶4-5.) Whether or not Counsel’s office received the clerk of Court’s mail or if it was misplaced by Counsel’s staff, Counsel avers it was inadvertent secretarial error which caused the FSC, trial date, and OSC to not be placed on Counsel’s calendaring system. (Id. at 7.) Therefore, Counsel declares he did not appear at the FSC and at trial scheduled for December 23, 2022 because of the calendaring error. (Id. at 8.) Consequently, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Dec. 23, 2022.)  Counsel avers that the dismissal was a result of Counsel’s fault, and Counsel requests Plaintiff’s complaint be reinstated.  

Generally, regarding mis-calendaring, excusable neglect and a basis for relief has been found where an attorney relies on an employee or calendaring system to calendar deadlines, and the employee or system fails. (Renteria v. Juvenile Justice, Dept. of Corrections & Rehabilitation (2006) 135 Cal. App. 4th 903, 911.) Because Plaintiff timely filed this instant motion within six months of dismissal, and establishes dismissal was the result of Counsel’s excusable neglect for failure to appear due to a mis-calendaring error from to a purported failure in receiving the Court’s notice, the motion to set aside the dismissal is granted and the action is reinstated.   

 

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 6th day of September 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court