Judge Randolph M. Hammock, Case 21STCV44981 2023-03-08 Tentative Ruling

Judge: Randolph M. Hammock, Case: 21STCV44981, Date: 2023-03-08 Tentative Ruling

Plaintiff Jorge Alberto Alvarez brings this action against Defendants Bunlee Bunmiend 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.

Plaintiff now moves for an order to set aside the order dismissing the action. Defendants had not filed an opposition when this motion first came for hearing on January 30, 2023. At the request of Defendant Bunmiend, this court continued the hearing to this date to allow Defendant to file an opposition. Defendant has now opposed.

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 Bunmiend, 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 section 473(b). 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]

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?)

Defendant Bunmiend now submits an opposition in which he “opposes in part” the motion to set aside. (Opp. 1: 19.) Defendant recognizes that he “would benefit from the dismissal of this case,” but notes he is “morally and ethically bound” to present controlling authority against him. (Opp. 1: 21-23.) He continues that it is his “belie[f] [that] this Court dismissed the instant complaint under the authority of California Code of Civil Procedure Section 575.2.” (Opp. 1: 25-28.) Section 575.2, among other things, allows a court to dismiss an action based on failure to comply with local rules. On this belief, and following a discussion of cases addressing section 575.2, Defendant appears to suggest that this court was without authority to dismiss the case under the circumstances.

However, as stated directly in the October 3, 2022, Minute Order dismissing the case, this court entered dismissal “pursuant to CCP section 581(b)(5) and/or (b)(3)”—not section 575.2. (Minute Order 10/3/2022.) These sections allow for dismissal “[b]y the court” when “no party appears for trial following 30 days’ notice” (§ 581(b)(3)) or “when either party fails to appear on the trial and the other party appears and asks for dismissal.” (§ 581(b)(5).) Therefore, the opposition largely fails to address the facts at hand. [FN 2]

It should be noted that 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 explanation 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, it appears that Defendant fails to substantively oppose the motion, even after being given a continuance to do so. Importantly, Defendant does not suggest he will suffer undue prejudice if relief is granted. The court therefore exercises its discretion to grant Plaintiff’s relief so that the action may be determined on its merits. (See Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC, (2015) 61 Cal. 4th 830, 839 [“The general underlying purpose of section 473(b) is to promote the determination of actions on their merits”]; see also Austin v. Los Angeles Unified Sch. Dist. (2016) 244 Cal. App. 4th 918, 929 [“[b]ecause the law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’”].)

Judge of the Superior Court

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 is in pro per, the mandatory provision does not apply.

FN 2 - It is possible Defendant is referencing a different case altogether, as the opposition also refers to counsel’s affidavit of fault (of which there is none here), and refers to Plaintiffs “Ruth and Gordon Cowie,” who are not the Plaintiffs in this action.