Judge: Salvatore Sirna, Case: 23PSCV00314, Date: 2024-01-18 Tentative Ruling

Case Number: 23PSCV00314    Hearing Date: January 18, 2024    Dept: G

Plaintiff Sahdiq Rahshan McNair’s Motion to Set Aside Dismissal

Respondent: NO OPPOSITION

TENTATIVE RULING

The court requests additional information from counsel for Plaintiff Sahdiq Rahshan McNair regarding the missed court hearings.

BACKGROUND

This is a premises liability action. In February 2021, Plaintiff Sahdiq Rahshan McNair was making a delivery to a Covina property allegedly owned by Defendants Richard Burgos, Cameron Burgos, and Fredi Becker. As McNair was heading up a set of allegedly steep steps before the Covina property’s front door, McNair tripped or slipped and suffered a series of injuries.

On February 1, 2023, McNair filed a complaint against Richard Burgos, Cameron Burgos, Becker, and Does 1-50, alleging the following causes of action: (1) general negligence and (2) premises liability.

On June 20, 2023, Becker filed a motion to quash the service of summons. On August 21, the court granted Becker’s motion. Subsequently, McNair agreed to dismiss Becker from the present action.

On November 7, 2023, McNair’s counsel failed to appear for a case management conference and OSC Re: Default/Default Judgment. As a result, the court set an OSC Re: Sanctions and Dismissal for November 20. After McNair’s counsel failed to appear on November 20, the court dismissed McNair’s Complaint without prejudice pursuant to Code of Civil Procedure section 575.2.

On December 22, 2023, McNair filed the present motion. A hearing on the motion is set for January 18, 2024.

ANALYSIS

McNair seeks to vacate the court’s dismissal of McNair’s action on the grounds of unintended neglect, mistake, or inadvertence. For the following reasons, the court GRANTS McNair’s motion.

Legal Standard

Whenever an application for relief from dismissal is made no more than six months after entry of the judgment of dismissal, is in proper form, and is accompanied by the moving party’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or excusable neglect, the court may vacate any dismissal entered against the moving party unless the court finds that the dismissal was not in fact caused by the moving party’s mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §473, subd. (b).) The court shall grant relief if the moving party’s counsel provides a “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) “The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Code Civ. Proc., § 473, subd. (b).) “The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed.” (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)

Discussion

In this case, McNair’s counsel, Tom Kinan, states counsel failed to appear for the case management conference on November 7, 2023, and November 20 due to calendaring errors. (Kinan Decl., ¶ 16.) Kinan blames a paralegal for failing to calendar relevant filing deadlines and appearance dates. (Kinan Decl., ¶ 15-16.) But, the court notes that attorney Kinan failed to explain why he was unaware of the November 7 case management conference when attorney Kinan was present at the previous case management conference on October 2. There, the court directed attorney Kinan to serve statements of damages on the Burgos Defendants before filing additional requests for the entry of default. (10/02/2023 Minute Order.)

The court notes that it is counsel’s responsibility to ensure upcoming court hearings are properly and correctly calendared; not the paralegal’s responsibility.  While counsel may delegate those responsibilities to a paralegal, counsel remains responsible and accountable to the court.  Furthermore, there is no explanation in attorney Kinan’s declaration regarding any progress on the default judgment applications that counsel was supposed to be preparing during this time.

CONCLUSION

At the hearing on January 18, 2024, the court will hear from counsel regarding the issues identified above which were not addressed in the declaration.