Judge Olivia Rosales, Case 20STCV21816 2022-07-26 Tentative Ruling

Judge: Olivia Rosales, Case: 20STCV21816, Date: 2022-07-26 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 20STCV21816 Hearing Date: July 26, 2022 Dept: SEC

MYKAI SKINNER. v. DOWNEY UNIFIED SCHOOL DISTRICT, et al.

CASE NO.: 20STCV21816

HEARING: 07/26/22

JUDGE: OLIVIA ROSALES

TENTATIVE ORDER

Motion to set aside judgment of Plaintiff Mykai Skinner, through his Guardian ad Litem Brenda Nonette, is GRANTED. CCP § 473(b).

Plaintiff is ordered to file his Third Amended Complaint but only as to include the first cause of action within five (5) days of this order. The Proposed Third Amended Complaint attached to the Moving Papers improperly includes a cause of action for violation of Civil Code § 51.9, which was previously sustained without leave to amend.

Moving Party to give notice.

Background

This action was filed by Plaintiff Mykai Skinner by and through his guardian ad litem, Brenda Nonette on June 9, 2020. On January 20, 2022, the Court sustained without leave to amend Defendant Downey Unified School District’s demurrer to the Second Amended Complaint without leave to amend. Thus, because no causes of action remained, the Court dismissed the action and granted judgment in favor of Defendant DUSD on January 17, 2022.

Plaintiff now moves to set aside the dismissal entered on February 17, 2022 on the ground that Plaintiff’s counsel inadvertently and mistakenly failed to appear at the January 20, 2022 hearing and failed to reinclude the first cause of action for negligence after the Court granted Plaintiff leave to amend to file a Second Amended Complaint, which was in response to Defendant DUSD’s previous demurrer.

Legal Standard

CCP § 473, subd. (b) provides a means for relief from default or default judgment entered as a result of mistake, inadvertence, surprise, or neglect. The section contains a discretionary provision: “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.” (Code Civ. Proc., § 473, subd. (b).) “[T]he moving party has the burden of showing that the neglect leading to default was excusable.” (Jackson v. Bank of Am. (1983) 141 Cal.App.3d 55, 58.) “[B]ecause the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (negative treatment on other grounds).) Where the party in default moves promptly to seek relief, and¿no prejudice¿to the opposing party will result from setting aside the default, “very slight evidence¿will be required to justify a court in setting aside the default.”¿(Ibid.)

The section also contains a mandatory provision: “Notwithstanding any other requirements of this section, the 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 own 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.) Under the mandatory provision, the attorney’s neglect does not need to be excusable. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

Analysis

Here, Plaintiff’s counsel admits fault for his failure not appearing for January 20, 2022 hearing for Defendant DUSD’s demurrer to the SAC as well as the failure of not including the cause of action for negligence in the SAC. (Ibis Decl. ¶¶ 6-10.) Specifically, as to missing the scheduled hearing, Plaintiff’s counsel attests that he scheduled his remote appearance for the wrong department at the wrong time. (Ibis Decl. ¶¶ 9-10.) As to the omitted cause of action, he attests that it was prepared remotely by his legal assistant, and when it was sent over to the office for filing, Plaintiff’s attorney mistakenly omitted the first cause of action for negligence, which had survived Defendant DUSD’s demurrer to the First Amended Complaint. (Ibis Decl. ¶¶ 7-8.)

In opposition, Defendant DUSD argues that Plaintiff has failed to make the requisite showing for relief under CCP § 473(b) because Plaintiff’s counsel failed to provide reasonable excuses as to why he failed to appear for the January 20, 2022 hearing and why he did not include the first cause of action for negligence in the SAC. (Opposition at pp. 5-6.) However, the Court disagrees. First, to be entitled to mandatory relief, there is no requirement that counsel’s neglect be excusable. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 770.) Indeed, CCP § 473, subd. (b) “does not require an explication of reasons as a prerequisite to mandatory relief. … [W]hat must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) “[The] purposes [of §473(b)] are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.” (Id. at 439.) Second, Plaintiff’s counsel has stated that the omission of the negligence cause of action was his fault, not his assistant. (Ibis Decl. ¶ 8.) Regardless, even if his assistant was at fault, courts have found excusable neglect where the attorneys relied on a member of their staff “to perform certain tasks, including calendaring deadlines, and the staff member errs.” (Renteria v. Juvenile Justice, Dept. of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, 911; see also Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359; see also Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276.) Therefore, the Court finds that Plaintiff is warranted relief under the mandatory provision of CCP § 473(b). The Court finds adequate grounds to allow Plaintiff the opportunity to continue to prosecute this action. Thus, Defendant DUSD’s request for sanctions are denied. However, the Court notes that the Proposed Third Amended Complaint attached to the Moving Papers improperly includes a cause of action for violation of Civil Code § 51.9, which was previously sustained without leave to amend.

Accordingly, Plaintiff’s motion to vacate judgment is granted. Plaintiff is ordered to file his Third Amended Complaint but only as to include the first cause of action within five (5) days of this order.