Judge: Peter A. Hernandez, Case: 22STCV18425, Date: 2024-11-05 Tentative Ruling
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Case Number: 22STCV18425 Hearing Date: November 5, 2024 Dept: 34
Plaintiff Artur
Hambardzumyan’s Motion to Set Aside/Vacate Dismissal is
GRANTED.
Background
On June 6, 2022, Plaintiff Artur
Hambardzumyan (“Plaintiff”) filed a complaint against Defendant Jaguar Land
Rover North America, LLC (“Defendant”) on causes of action arising from alleged
issues with Plaintiff’s vehicle for:
1.
Fraud and Deceit;
2.
Breach of Written Warranty (Magnuson-Moss Warranty Act);
3.
Breach of Implied Warranty (Magnuson-Moss Warranty Act);
4.
Breach of Written Warranty (Song-Beverly Consumer Warranty Act);
5.
Breach of Implied Warranty (Song-Beverly Consumer Warranty Act);
6.
Violation of Business & Professional Code § 17200, et seq.;
7.
Violation of Business & Professional Code § 17500, et seq.;
8.
Negligence; and
9.
Strict Liability.
On July 7, 2022, Defendant filed an
answer to Plaintiff’s complaint.
On December 16, 2022, the court
granted Plaintiff’s Request for Dismissal of the complaint’s First Cause of
Action for Fraud and Deceit and Eighth Cause of Action for Negligence without
prejudice.
On November 27, 2023, Plaintiff filed
a conditional “Notice of Settlement of Entire Case.” An Order to Show Cause Re:
Dismissal (Settlement) was set for January 11, 2024.
On January 11, 2024, the court
continued the Order to Show Cause Re: Dismissal (Settlement) hearing to
February 15, 2024 and ordered for any Motion for Attorney’s Fees to be filed
and heard by February 15, 2024.
On January 22, 2024, Plaintiff filed
a Motion for Attorney’s Fees set for hearing on March 13, 2024.
On February 15, 2024, the court
dismissed Plaintiff’s complaint with prejudice and vacated the hearing on
Plaintiff’s Motion for Attorney’s Fees.
On August 15, 2024, Plaintiff filed
this Motion to Set Aside/Vacate Dismissal. On August 29, 2024, Defendant filed
a response to Plaintiff’s motion. On September 4, 2024, Plaintiff filed a
notice of non-opposition to Plaintiff’s motion.
Legal Standard
The court has
broad discretion to relieve a party from an order taken against him or her due
to excusable neglect, but that discretion can be exercised only if the party
establishes a proper ground for relief, by the proper procedure and within
the set time limits. Code
of Civil Procedure section 473(b) provides, in relevant
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
accompanied by a copy of the answer or other pleading proposed to be filed
therein, otherwise the application shall not be granted, and shall be made
within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken. . . . No affidavit or declaration of
merits shall be required of the moving party. 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 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. . . .
Section 473(b) provides for two
distinct types of relief. “Under the discretionary relief provision, on a
showing of “mistake, inadvertence, surprise, or excusable neglect,” the court
has discretion to allow relief from a “judgment, dismissal, order, or other
proceeding taken against” a party or his or her attorney. Under the mandatory
relief provision, on the other hand, upon a showing by attorney declaration of
“mistake, inadvertence, surprise, or neglect,” the court shall vacate any
“resulting default judgment or dismissal entered.” (Leader v. Health
Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616.)
Discussion
Plaintiff seeks relief pursuant to Code of Civil
Procedure section 473, subdivision (b). (Motion, at p. 11.) Plaintiff contends
that Plaintiff’s counsel could not appear at the Order to Show Cause Re: Dismissal (Settlement) hearing on February 15,
2024 due to a scheduling conflict. (Id., at p. 8.) As such, Plaintiff’s counsel
requested an appearance attorney, Counsel Suki Ishwar Patel, to attend the
hearing and informed her that the case was settled, and that Plaintiff’s Motion
for Attorney’s Fees was filed on January 22, 2024 with a hearing set for March
13, 2024. (Ibid.) Plaintiff argues that the instructions
given to Counsel Patel did not reflect the detailed status of the case that
Plaintiff had not received the settlement funds, that Plaintiff’s counsel
discovered the existence of wire fraud where Defendant’s funds were stolen by
imposters, and that the parties were aware of these issues and were actively
discussing possible solutions. (Ibid.) Thus, Plaintiff argues that due to
Plaintiff’s counsel’s insufficient instructions, Counsel Patel failed to advise
the court that the settlement was not completed leading the court to conclude
that the case should be dismissed. (Ibid.) Plaintiff also argues that since Defendant’s
counsel was aware of these issues when attending the dismissal hearing,
Defendant’s counsel mislead the court and falsely represented that settlement
terms had been completed and/or failed to inform the court otherwise. (Ibid.)
In response, Defendant states that they take no position
on whether relief should be granted to Plaintiff and does not oppose any relief
the court may choose to grant. (Response, at p. 4.) Instead, Defendant disputes
the characterization of Defendant’s counsel’s behavior at the February 15, 2024
hearing. (Ibid.)
As
such, the court grants the relief requested. First, Plaintiff’s motion is
timely, as it was filed within the six-month deadline. Moreover, Plaintiff’s motion
seeks to set aside the dismissal entered on February 15, 2024 due to
Plaintiff’s counsel's mistake. (Hovanes Decl., ¶ 28; Armen Decl., ¶ 6.)
Specifically, Plaintiff’s counsel avers that they did not properly instruct and
inform Counsel Patel, acting as the appearing attorney, that although the
parties reached a settlement agreement, the payment to Plaintiff was still
outstanding and that the case should remain open. (Hovanes Decl., ¶¶ 28-29;
Armen Decl., ¶ 6.) As there is no opposition from Defendant regarding
Plaintiff’s counsel’s mistake, or other basis to find that the dismissal was
not so caused, Plaintiff’s motion is granted.
Conclusion
Plaintiff
Artur Hambardzumyan’s Motion to Set Aside/Vacate
Dismissal is GRANTED.