Judge: Peter A. Hernandez, Case: 23PSCV01519, Date: 2024-04-24 Tentative Ruling
Case Number: 23PSCV01519 Hearing Date: April 24, 2024 Dept: K
Background
On May 18, 2023, Plaintiff filed a complaint, asserting causes of action against Joanna Lee and Does 1-10 for:
1.
Motor Vehicle
2.
General Negligence
On October 10, 2023, Plaintiff’s counsel failed to appear at the Case Management Conference (“CMC”) and Order to Show Cause Re: Failure to File Proof of Service set for that day; as such, the court continued the CMC and set an Order to Show Cause Re: Why the Matter Should Not be Dismissed for Failure to Prosecute for January 31, 2024.
On January 31, 2024, the court ordered Plaintiff’s complaint dismissed, without prejudice, after Plaintiff’s counsel failed to appear at the hearing.
Legal Standard
“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).)
Discussion
Plaintiff moves the court, per Code of Civil Procedure § 1008, subdivision (a), for reconsideration of its January 31, 2024 order.
At the court notes that, while the instant motion is styled as one seeking reconsideration, it is actually a motion seeking to set aside the court’s dismissal order (i.e., pursuant to attorney affidavit of fault under Code of Civil Procedure § 473, subdivision (b)). “[A trial court may construe a motion bearing one label as a different type of motion. . . ‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.’ (City & County of S.F. v. Muller (1960) 177 Cal.App.2d 600, 603) . . . The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the courts inherent authority to manage and control its docket. (Code Civ. Proc., §§ 128, subd. (a), 187.)” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) The court, then, will construe the instant motion as one to set aside the court’s January 31, 2024 dismissal order based upon an attorney affidavit of fault.
Plaintiff’s counsel Jocelyn H. Sicat (“Sicat”) represents as follows:
On January 31, 2024, the court vacated
the case management conference and dismissed the case without prejudice after she
failed to appear. (Sicat Decl., ¶ 11.) She has recently been out of the office
due to illness. (Id., ¶ 12). She has also been short-staffed; her
assistant who normally manages her calendar, Victoria Carlos (“Carlos”) has
been out of the office since the beginning of the year, studying for the
February bar exam. (Id.) Her part-time assistant, Anna Lopez (“Lopez”),
has been filling in for Carlos. (Id.) She had instructed Lopez to make
sure all of her appearances were covered due to her illness. (Id., ¶
13). The January 31, 2024 hearing was not in Lopez’s calendar; as such,
coverage was not arranged. (Id.) When she called Lopez on January 31,
2024 to get an update on the hearing, Lopez advised that she was not aware that
she had any hearings on calendar. (Id., ¶ 14). She learned of the
dismissal order after she and Lopez each called the court that day. (Id.,
¶¶ 14 and 15).
As Plaintiff has timely sought relief from the dismissal pursuant to an affidavit of fault, Plaintiff is entitled to the relief sought. The motion is granted, and the case is ordered restored to the civil active list.