Judge: Robert B. Broadbelt, Case: 21STCV29388, Date: 2025-01-07 Tentative Ruling

Case Number: 21STCV29388    Hearing Date: January 7, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant General Motors LLC        

RESPONDING PARTY:       Plaintiff Jose Hernandez

Motion to Set Aside August 28, 2024 Order

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendant General Motors LLC (“Defendant”) moves the court for an order (1) setting aside the court’s August 28, 2024 order granting in part the motion for attorney’s fees filed by plaintiff Jose Hernandez (“Plaintiff”), and (2) resetting the hearing on Plaintiff’s motion to allow Defendant to file an opposition thereto.

“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.”  (Code Civ. Proc., § 473, subd. (b).)

The court finds that Defendant has met its burden to show that it is entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (b), and therefore grants Defendant’s motion.  (Code Civ. Proc., § 473, subd. (b); Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 [“the moving party bears the burden of establishing a right to relief” under section 473].)

First, the court finds that (1) Defendant’s motion, filed on October 17, 2024 (i.e., within six months of the date of the court’s August 28, 2024 order) was filed within a reasonable time and therefore is timely, and (2) Defendant has attached its proposed pleading (i.e., the opposition to Plaintiff’s motion) to the pending motion.  (Code Civ. Proc., § 473, subd. (b); Mot., Ex. D.)

Second, the court finds that Defendant has met its burden to show that the court’s August 28, 2024 order was taken against it through its counsel’s mistake and excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)

Defendant has submitted the declaration of its counsel, in which counsel states the following: (1) on April 25, 2024, the court advanced the hearing on Plaintiff’s motion for attorney’s fees from October 22, 2024 to August 28, 2024; (2) attorney Jefferey Davis appeared on behalf of Defendant at the April 25, 2024 Order to Show Cause, during which Davis waived notice; and (3) attorney Davis failed to forward the results of the Order to Show Cause (i.e., the advanced hearing date) to the handling attorney, such that the hearing date was calendared for the original hearing date of October 22, 2024.  (April 25, 2024 Minute Order, p. 1; Kay Decl., ¶ 3.)  Moreover, although Plaintiff filed his motion for attorney’s fees with the court on March 28, 2024, Plaintiff served Defendant with the moving papers on August 6, 2024, which identified the original hearing date of October 22, 2024, such that the handling attorney “was still under the impression that the hearing was to proceed on” that date.  (Aug. 8, 2024 Proof of Service; Kay Decl., ¶ 4.)  Plaintiff does not appear to dispute that the moving papers served on Defendant on August 6, 2024 did not state the advanced hearing date on the motion.

 The court finds that Defendant has shown that counsel’s mistake in failing to properly calendar Plaintiff’s motion, caused by the appearing attorney’s failure to inform the handling attorney of the advanced hearing date thereon, constitutes mistake and excusable neglect.  (Code Civ. Proc., § 473, subd. (b); Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 [“‘the failure of counsel to meet a procedural deadline’ is ‘a proper subject for section 473 relief’”], 1419 [defining excusable neglect to mean “‘that neglect which might have been the act of a reasonably prudent person under the same circumstances’”]; Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1133 [“Almost a century ago, our Supreme Court found it obvious that entering the wrong date in an attorney’s calendar was sufficient to warrant relief under Code of Civil Procedure section 473”].)

ORDER

            The court grants defendant General Motors LLC’s motion to set aside August 28, 2024 order as follows.     

            The court orders that its August 28, 2024 order is vacated.

            The court sets for hearing plaintiff Jose Hernandez’s motion for attorneys’ fees and costs, filed on March 28, 2024, on April 11, 2025, at 10:00 a.m., in Department 53.

            The court orders that defendant General Motors LLC may file opposition papers in connection with the motion for attorney’s fees, in the form attached as Exhibit D to its motion to set aside the August 28, 2024 order, at least nine court days before the hearing, and plaintiff Jose Hernandez may file reply papers at least five court days before the hearing.

            The court orders General Motors LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 7, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court