Judge: Michelle Williams Court, Case: BC697314, Date: 2022-08-04 Tentative Ruling

Case Number: BC697314    Hearing Date: August 4, 2022    Dept: 74

BC697314      RAFAEL DAVID MIRANDA VS ANDRES CONTRERAS

Plaintiff’s Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B).

TENTATIVE RULING:      The motion is DENIED.  The “Hearing on Motion - Other by Plaintiff to set aside dismissal without prejudice against Defendants Paul B. Yalnezian and Michael Chitjian pursuant to CCP Section 473 (b)” on calendar for December 20, 2022 pursuant to Court Reservation Number 435471050031 is advanced and vacated.

Background

On March 9, 2018, Plaintiff Rafael David Miranda filed a complaint against Andres Contreras, Richard Lopez, Irma Lopez, Jose A. Leon, LMM Real Estate, Inc., and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff’s title thereto.

On July 30, 2018, Plaintiff filed a First Amended Complaint.  

On March 22, 2021, Plaintiff filed a Second Amended Complaint.  

On May 27, 2021, Plaintiff filed a Third Amended Complaint, which was rejected for failure to obtain a court order permitting its filing.

On May 28, 2021, the Court dismissed Defendants Century 21 Real Estate, LLC, Michael Chitjian, Integrety 1st Escrow Company, Inc., Jose A. Leon, LMM Real Estate, Inc., Richard Lopez, Stuart B. Meyers, Rudy Rodriguez, Frank Soto, Sr. and Paul B. Yalnezian from the action

On September 8, 2021, Plaintiff filed “Plaintiff’s Notice of Motion and Noticed Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B)” seeking to set aside the Court’s May 28, 2021 dismissal order.  

On October 1, 2021, Plaintiff filed a second identical motion entitled Plaintiff’s “Notice of Motion and Noticed Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B)” seeking to set aside the Court’s May 28, 2021 dismissal order. On November 18, 2021, the Court denied Plaintiff’s motion.  

On July 21, 2022, the Court denied Plaintiff’s motion for reconsideration of the Court’s November 18, 2021 order.

Motion

Plaintiff’s September 8, 2021 Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B) seeking to vacate the Court’s May 28, 2021 order is on calendar pursuant to Court Reservation Number 379059070567.

No additional opposition was filed in connection with this hearing.

Motion to Set Aside

The Court Previously Ruled on the Instant Motion

On September 8, 2021, Plaintiff filed a motion entitled “Plaintiff's Notice of Motion and Noticed Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B)” under Court Reservation ID Number 379059070567 with the hearing originally set for hearing on April 7, 2022. The motion consisted of eleven pages and argued, in material part:

On May 28, 2021, Plaintiffs counsel's inadvertently and by mistake did not obtained [sic] a prior Court Order to Leave To File Third Amended Complaint (TAC) when parties mutually stipulated to changes of proposed pleading. As a result, defendants Paul B. Yalnezian and Michael Chitjian in 2nd Amended Complaint filed by plaintiff were dismissed without prejudice in this court as to Minute Order issued on May 28, 2021. Therefore, this Court should grant this motion based upon counsel’s inadvertently and by mistake to obtain a prior Court Order to Leave to File TAC, which resulted in dismissal of action without prejudice.

(Sep. 8, 2021 Mot. at 10:14-23.) This motion was signed by Plaintiff’s counsel on August 24, 2021. The September 8, 2021 motion is on the Court’s calendar for August 4, 2022.

On October 1, 2021, Plaintiff filed an identical motion entitled “Plaintiff's Notice of Motion and Noticed Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B)” under Court Reservation ID Number 435471050031. This motion was noticed for November 18, 2021, was also eleven pages in length, and signed by Plaintiff’s counsel on August 24, 2021. The October 1, 2021 motion was word for word identical to the motion previously filed on September 8, 2021, including the relevant argument:

On May 28, 2021, Plaintiffs counsel's inadvertently and by mistake did not obtained [sic] a prior Court Order to Leave To File Third Amended Complaint (TAC) when parties mutually stipulated to changes of proposed pleading. As a result, defendants Paul B. Yalnezian and Michael Chitjian in 2nd Amended Complaint filed by plaintiff were dismissed without prejudice in this court as to Minute Order issued on May 28, 2021. Therefore, this Court should grant this motion based upon counsel’s inadvertently and by mistake to obtain a prior Court Order to Leave to File TAC, which resulted in dismissal of action without prejudice.

(October 1, 2021 Mot. at 10:14-23.)

The September 8, 2021 motion should not be on calendar this date and Plaintiff’s duplicative filing has created a scheduling error. On September 21, 2021, the Court issued an order stating “the Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) scheduled for 04/07/2022 is advanced to this date and continued to 11/18/2022 at 08:30 AM in Department 74 at Stanley Mosk Courthouse.”

On November 15, 2021, the Court issued a Nunc Pro Tunc Order correcting the September 21, 2021 minute order to state “[o]n the Court's own motion, the Hearing on Motion to Set Aside/Vacate Dismissal (CCP 473) scheduled for 04/07/2022 is advanced to this date and continued to 11/18/2021 at 08:30 AM in Department 74 at Stanley Mosk Courthouse.” Thus, the hearing date for the September 8, 2021 motion originally scheduled for April 7, 2022 was reset for hearing on November 18, 2021. In the interim, Plaintiff had noticed the identical October 1, 2021 motion for November 18, 2021 as well.

On November 18, 2021, the Court’s order stated “The Motion to Set Aside/Vacate Dismissal filed by Rafael David Miranda on 10/01/2021 is Denied.”

Despite these orders, the September 8, 2021 motion filed under Court Reservation Number 379059070567 was placed on the Court’s calendar for August 4, 2022 and the October 1, 2021 motion filed under Court Reservation Number 435471050031 has been placed back on the Court’s calendar for December 20, 2022.

The Court heard and resolved these identical motions on November 18, 2021.

Plaintiff’s Motion to Set Aside Dismissal Without Prejudice Pursuant to CCP § 473(B) filed September 8, 2021 is DENIED for the reasons stated in the Court’s November 18, 2021 order.

The “Hearing on Motion - Other by Plaintiff to set aside dismissal without prejudice against Defendants Paul B. Yalnezian and Michael Chitjian pursuant to CCP Section 473 (b)” on calendar for December 20, 2022 pursuant to Court Reservation Number 435471050031 is hereby advanced to this date and vacated.