Judge: Olivia Rosales, Case: 23NWCV03112, Date: 2024-10-31 Tentative Ruling

Case Number: 23NWCV03112    Hearing Date: October 31, 2024    Dept: F

Zhenhai Huang, et al. vs Anthony Hernandez, et al.

Case No.: 23NWCV03112

Hearing Date: October 31, 2024 @ 10:30 a.m.

Tentative Ruling

Plaintiffs Zhenhai Huang and Zhiquan Li Motion to Set Aside Dismissal is GRANTED.

Sanctions are awarded to Defendant in the amount of $800.00, payable within 30 days of notice of this order.

Background

This case arises out of a motor vehicle accident. The Complaint alleges that on or about July 6, 2022 Plaintiffs Zhenhai Huang and Zhiquan Li (collectively “Plaintiffs”) were in a motor vehicle accident with Defendants Anthony Hernandez, Paul Anthony Araw, and Reyes Coca-Cola Bottling LLC (collectively “Defendants”) alleging one cause of action for negligence.

An answer was filed by Defendants Paul Anthony Araw and Reyes Coca-Cola Bottling LLC on November 29, 2023. On May 9, 2024, at the Case Management Conference Plaintiffs’ counsel did not appear. On August 22, 2024, Plaintiffs counsel again did not appear for the OSC: re Dismissal as to why the case should not be dismissed for counsel for the plaintiff’s failure to appear on May 9, 2024 and the case was dismissed without prejudice. (8-22-24 Minute Order.)

On September 25, 2024, Plaintiffs filed the instant motion for order granting relief from dismissal.

Request for Judicial Notice

Plaintiffs request that the Court take judicial notice of the Court’s January 31, 2024, May 9, 2024, and August 22, 2024 Minute Orders.

The Court may take judicial notice of official legislative, executive, and judicial acts and records of any court of this state or any court of record of the United States or of any state of the United States.  (Evid. Code §§ 452(c) and (d).)  Accordingly, Plaintiff’s requests for judicial notice one through four seeking judicial notice of these judicial records are GRANTED.  Though the Court may take judicial notice of the docket and filings within, the Court may not take judicial notice of the truth of their contents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) 

Legal Standard

“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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted….” (emphasis added.) (CCP §473(b).)

Discussion

Counsel declares that the error at issue here was solely and exclusively an attorney error for which Plaintiffs’ attorney takes full responsibility. In particular, due to an error in scheduling, the May 9, 2024, hearing was not properly calendared at Plaintiffs’ counsel’s law firm. There was also a subsequent failure on the part of Plaintiffs’ counsel’s law firm to calendar the August 22, 2024 Order to Show Cause Hearing, and thereby failed to schedule a court-call appearance. (Lee Decl., ¶¶ 4-5.)

The Court is persuaded that relief is mandatory, given the error of the counsel.

Accordingly, Plaintiff’s Motion to Set Aside Dismissal is GRANTED.

Sanctions

“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).)

Defense counsel request attorneys’ fees for the appearances at the May and August hearings for a total of $800.00 (1 hour preparing for and attending the hearings at an hourly rate of $400.00).

The Court GRANTS sanctions in the amount of $800.00.