Judge Randolph M. Hammock, Case 21STCV44981 2023-01-30 Tentative Ruling

Judge: Randolph M. Hammock, Case: 21STCV44981, Date: 2023-01-30 Tentative Ruling

Plaintiff Jorge Alberto Alvarez brings this action against Defendants Bunlee Bunmiewd and Joaquin Murrieta seeking $35,000.00 for the alleged breach of a written contract. Plaintiff brings causes of action for (1) breach of contract, (2) negligent infliction of emotional distress, and (3) intentional infliction of emotional distress.

The matter was called for trial on October 3, 2022. There was no appearance by Plaintiff. Pursuant to an oral request by Defendant, this court ordered the Complaint dismissed without prejudice.

Plaintiffs’ Motion to Set Aside Dismissal is either TAKEN OFF CALENDAR for inadequate notice, or shall be either CONTINUED or DENIED, depending on Plaintiff’s offer of proof as to the reasonableness of the delay in filing this motion. This will be determined at the 1/30/23 hearing.

Motion to Set Aside Dismissal

The matter was called for trial on October 3, 2022. There was no appearance by Plaintiff nor Defendant Murrieta. Pursuant to an oral request by Defendant Bunlee Bunmiewd (who did appear) this Court ordered the Complaint dismissed without prejudice pursuant to CCP section 581(b)(5) and/or (b)(3).

Plaintiff now moves to set aside the order of dismissal under CCP § 473(b). Plaintiff attests in a conclusionary manner that he did not appear at the trial because he simply “had mistakenly calendared the court trial date on [his] personal calendar in the wrong month.” (Alvarez Decl. ¶ 1.) He failed to explain this mistake in any further detail (e.g. To what date? The manner of this mistake – was this an electronic or physical calendar?)

Under the discretionary provisions of section 473(b), 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.” (CCP § 473(b).) To obtain relief under this provision, the application for relief must be made “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding.” (Ibid.) [FN 1]

First, Plaintiff has not filed any Proof of Service demonstrating any service whatsoever of the instant motion on Defendants. This alone is grounds to simply take the motion off calendar. However, if the Plaintiff did actually and properly serve a copy of his motion against both Defendants, as required by law, then Plaintiff may submit proof of same at the time of the hearing.

Second, Plaintiff has failed to provide any justification for his considerable delay in filing this motion. The clerk provided all parties with mailed notice of the dismissal on the same day it was entered—October 3, 2022. Plaintiff did not file this motion until December 15, 2022, a delay of nearly two-and-a-half months. Although made within the mandatory six-month deadline, a delay of this length—without any reasonable explaination for same—is unreasonable on its face. Thus, absent any further and reasonable explanation for this delay, the court could find that Plaintiff failed to seek relief within a reasonable time, and therefore could exercise its discretion to deny relief on that basis alone.

Be that as it may, as noted by the Plaintiff in his motion papers, it is a fundamental principle of law that cases should be decided on their merits. Plaintiff appears to have a meritorious case, if this case simply involved a failure to pay back a $35,000 loan, as alleged in his Complaint.

Accordingly, Plaintiffs’ Motion to Set Aside Dismissal will either TAKEN OFF CALENDAR for inadequate notice, or shall be CONTINUED or DENIED, depending on Plaintiff’s offer of proof as to the reasonableness of the delay in filing this motion.

FN 1 -Section 473, subdivision (b) also provides for mandatory relief upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect.” As Plaintiff has been in pro per this entire case, that mandatory provision does not apply.