Judge: Michelle C. Kim, Case: BC699370, Date: 2024-04-12 Tentative Ruling

Case Number: BC699370    Hearing Date: April 12, 2024    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

WESCO INS CO, 

Plaintiff(s), 

vs. 

 

PEDRO ZAVALA, ET AL., 

 

Defendant(s). 

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      CASE NO: BC699370 

 

[TENTATIVE] ORDER GRANTING MOTION TO SET ASIDE DISMISSAL 

 

Dept. 31 

1:30 p.m.  

April 12, 2024 

 

I. BACKGROUND  

Plaintiff Wesco Insurance Company(“Plaintiff”) filed a First Amended Complaint (“FAC”) against defendants Pedro Zavala, et al. for damages arising from assault and battery.   

On December 26, 2023, this matter was called for an Order to Show Cause Re: Dismissal for Failure to Request Entry of Default / Default Judgment, and after no appearance by Plaintiff, the Court dismissed Plaintiff’s FAC without prejudice pursuant to pursuant to CCP 581(g), 583.410, 583.130, CRC 3.110(h). (Min. Order, Dec. 26, 2023.)   

On March 15, 2024, Plaintiff filed the instant motion to set aside the dismissal.  

 

II. MOTION TO SET ASIDE  

  1. Legal Standard  

Code Civ. Proc. (“CCP”) § 473 provides for both discretionary and mandatory relief under certain circumstances. “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.” (CCP § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.)  “[T]he 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 (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  (Ibid.) 

 

  1. Discussion and Conclusion 

Plaintiff’s counsel (“Counsel”) declares he made a reservation to appear remotely for the OSC, and filed a default package. (Mot. Jensen Decl. ¶¶ 3-4.) On December 26, 2023, Counsel called into the hearing but the clerk was unable to hear him. (Id. at ¶ 5.) Counsel avers his mute button was off, so he hung up and called back into the hearing; however, he received an automated message that the hearing was over. (Id. at ¶ 6.) Counsel avers he immediately attempted to call the department, but no one answered, and he was unable to speak to any person after following up throughout the day. (Id. at ¶ 7.) 

Here, Counsel’s affidavit of mistake and technological error is sufficient to set aside the dismissal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 609- 10 [In order to qualify for mandatory relief, an affidavit from an attorney must be a straightforward admission of fault.].) Because Plaintiff timely filed this instant motion within six months of dismissal, the motion to set aside the dismissal is GRANTED and the action is reinstated.   

Counsel provides that the default judgment package has been filed. The Court sets an Order to Show Cause Re: Dismissal for Failure to Request Default Judgment for ________________.   

 

Moving party 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 11th day of April 2024 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court