Judge: Michelle C. Kim, Case: BC605523, Date: 2023-05-18 Tentative Ruling

Case Number: BC605523    Hearing Date: May 18, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Armando Lorensito (“Plaintiff”) filed this action against Defendant Celestino Avelino (“Defendant”) for damages arising out of an automobile accident. Plaintiff filed the Complaint on January 4, 2016. Plaintiff filed proof of service on Defendant on July 7, 2017. On May 2, 2019, the Court held an Order to Show Cause Re: Why This Action Should Not Be Dismissed for Failure of Plaintiff to Enter Default / Default Judgment Pursuant to California Rules of Court Sections 3.110(g) and 3.110(h) and an Order to Show Cause Re: Why This Action Should Not Be Dismissed For Delaying and Prosecuting the Action Pursuant to Code of Civil Procedure Section 583.410. Plaintiff failed to appear and the Court dismissed the case. On May 9, 2019, Plaintiff filed a Motion to Set Aside Dismissal Based on Attorney’s Excusable Neglect. On June 3, 2019, the Court granted the motion and set aside the dismissal.

Defendant’s default was entered on August 5, 2019. On July 30, 2020, Plaintiff submitted a request for entry of default judgment, which was later rejected. On January 26, 2021, Plaintiff submitted another request for entry of default judgment, which was also rejected. On June 25, 2021, Plaintiff submitted a request for entry of default judgment, which was rejected. On August 5, 2021, Plaintiff submitted another request for entry of default judgment, which was also rejected.

On May 10, 2022, the Court held an Order to Show Cause Re: Order to Show Cause Re: Dismissal for Failure to Enter Default/Default Judgment and Failure to Prosecute and an Order to Show Cause Re: Why Plaintiff’s Counsel should not be Sanctioned in an amount up to $500. Plaintiff’s counsel declined to stipulate to the Commissioner, and the hearing was continued to May 24, 2022. (Minute Order (5/10/2022). The Court ordered Plaintiff to give notice to anyone served. (Minute Order (5/10/2022). The record does not show that Plaintiff gave such notice. On May 24, 2022, neither Plaintiff nor Plaintiff’s counsel or any parties appeared at the hearing on the aforementioned orders to show cause. The Court entered dismissal as to the entire action with prejudice and served notice of same by mail on May 24, 2022. (Certificate of Mailing (5/24/2022).)

On December 2, 2022, Plaintiff filed the instant Motion to Set Aside Dismissal Based on Attorney’s Excusable Neglect under Code of Civil Procedure section 473(b)(1). The notice, motion, and supporting declaration were not signed, which appears to be the reason Plaintiff refiled the motion on December 5, 2022. The motion is unopposed.

2. Motion to Set Aside Dismissal Based on Attorney’s Excusable Neglect Under Code of Civil Procedure section 473(b)(1).

a. Legal Standard

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.)

Counsel for Plaintiff seeks relief from the Court ordered dismissal on May 24, 2022, contending the clerk advised Plaintiff’s counsel on May 10, 2022, that a notice would sent to Plaintiff’s counsel with the new dates and that no further hearing dates were stated in open court. Plaintiff’s counsel contends that Plaintiff has been diligent in the prosecution of this matter in attempting to amicably resolve the dispute without judicial intervention as well as participating in discovery. Plaintiff’s counsel further contends that Plaintiff’s failure to appear at the Order to Show Cause on May 2, 2019,[1] was due to mistake, inadvertence, surprise and excusable neglect, and that Plaintiff should be allowed to pursue this case on the merits. Plaintiff’s counsel also contends that they have complied with the “Delay Reduction Rules,” that Plaintiff has timely sought this relief, and that Plaintiff’s counsel is an attorney with staff charged with overseeing the files and the hearing date which was inadvertently overlooked, thus resulting in Plaintiff’s failure to appear.

The Court finds that Plaintiff’s motion fails for multiple reasons. First, the motion was brought well past the six-month deadline for Code of Civil Procedure section 473(b)(1). Plaintiff’s deadline to move to set aside the order of dismissal was November 24, 2022, which is six months after the Court ordered dismissal on May 24, 2022.[2] Contrary to Plaintiff’s counsel’s assertion, the May 24, 2022 hearing date was stated during the May 10, 2022 hearing, which is reflected in the Court’s May 10, 2022 Minute Order. (Minute Order (5/10/2022). Plaintiff was the party ordered to give notice of the continued hearing date, not the Court. (Minute Order (5/10/2022). A copy of the minute order was also mailed on May 24, 2022, to counsel for Plaintiff’s current address. (Certificate of Mailing (5/24/2022).)

Second, contrary to Plaintiff’s assertion, Plaintiff has not acted with diligence in prosecuting this action. This action was filed on January 4, 2016, i.e., more than seven years ago. A year and half later, Plaintiff filed a proof of service on July 7, 2017. On May 2, 2019, the Court dismissed this action for the first time due to Plaintiff’s failure to timely and diligently prosecute this action. Plaintiff was able to get that dismissal set aside following a timely motion to set it aside.

On August 5, 2019, Plaintiff obtained an entry of default against Defendant. Plaintiff then submitted a handful of defective requests for entry of default judgment over the next approximately three years before failing to appear at the Orders to Show Cause hearing on May 24, 2022, which resulted in the action being dismissed again, this time with prejudice. As noted above, a copy of the May 24, 2022 minute order dismissing this action with prejudice was mailed to counsel for Plaintiff’s current address. Additionally, to the extent counsel for Plaintiff blames their office staff for failure to properly calendar the deadline for the May 24, 2022 hearing, given the timeline of this case, the Court does not accept that excuse.

Therefore, the Court will deny the motion.

            d. Conclusion and Order

Plaintiff’s motion is DENIED.

            Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 18^th  day of May, 2023