Judge Sarah J. Heidel, Case Number: 22GDCV00884, Date: 2024-11-18 Tentative Ruling

Judge: Sarah J. Heidel, Case: 22GDCV00884, Date: 2024-11-18 Tentative Ruling

Case Number: 22GDCV00884 Hearing Date: November 18, 2024 Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

ALBERT GUKASYAN,

Plaintiff,

vs.

MANOUK SINANIAN; and DOES 1 to 100, inclusive,

Defendants.

Case No: 22GDCV00884

Hearing Date: November 18, 2024

Time: 8:30 a.m. [TENTATIVE] ORDER RE: MOTION TO SET ASIDE OR VACATE DISMISSAL, OR MAINTAIN THE CASE ON CIVIL ACTIVE STATUS

MOVING PARTIES: Plaintiff ALBERT GUKASYAN
RESPONDING PARTY: Unopposed

The court considered the moving papers.

BACKGROUND

This is a premises liability action. Plaintiff Albert Gukasyan filed the complaint against defendant Manouk Sinanian on November 16, 2022, alleging general negligence and premises liability causes of action. On November 16, 2020 the ceiling collapsed at plaintiff’s residence located at 806 E. Acacia Ave., Apt. B, Glendale, CA 91205 (subject property). Plaintiff alleges that defendant owns, leases, occupies, operates, maintains, and controls the subject property and it was due to defendant’s negligence that the ceiling collapsed and caused plaintiff’s injuries.

Defendant was served on September 10, 2023, by substituted service. Defendant did not file an Answer and plaintiff did not request to enter default. On June 24, 2024, counsel for plaintiff did not make an appearance at the Order to Show cause hearing regarding sanctions/dismissal for failure to proceed with entry of default/default judgment and the court dismissed the matter without prejudice, the case for lack of prosecution.

Plaintiff filed the instant motion on October 15, 2024. No opposition has been received.

LEGAL STANDARD

Code of Civil Procedure section 473(b) provides, in relevant part: 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(b).) Code of Civil Procedure section 473(b) further provides that “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Id.)

DISCUSSION

Plaintiff moves for an order vacating the order of dismissal on the grounds of mistake and inadvertence, in that the failure of counsel for plaintiff, David Yerkanyan, Esq. to make an appearance at the hearing was due to mistaken belief that the proceedings were going to be held on July 24, 2024, rather than June 24, 2024

David Yerkanyan, Esq., plaintiff’s counsel states he believed the OSC was scheduled for July 24, 2024. (Decl. of David Yerkanyan, ¶ 1.) Defense counsel informed plaintiff’s counsel that she drafted an answer and cross-complaint, and that defendant’s insurance carrier was aware and preparing an answer as well, however, plaintiff’s counsel was still preparing a motion for default judgment for July 24, 2024. (Decl. of David Yerkanyan, ¶¶ 4, 5.) Plaintiff’s counsel discovered his mistake when he was preparing the motion for default judgment on June 24, 2024, checked the court’s website and saw the case was dismissed. (Decl. of Yerkanyan, ¶ 8.)

The court finds that the case was dismissed due to plaintiff’s counsel’s mistake in that the hearing was set on July 24, 2024 as laid out by plaintiff’s counsel’s affidavit of fault. Plaintiff has timely filed this motion within six months of the dismissal. Accordingly, the court grants plaintiff’s motion to vacate the dismissal.

Based on the foregoing, the court GRANTS plaintiff’s motion to vacate dismissal.

Plaintiff is ordered to give notice of this ruling.