Judge Serena R. Murillo, Case 18STCV05596 2023-01-05 Tentative Ruling

Judge: Serena R. Murillo, Case: 18STCV05596, Date: 2023-01-05 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)

IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.

ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 18STCV05596 Hearing Date: January 5, 2023 Dept: 29

TENTATIVE

Plaintiff Charles Alvarez’s Motion to Set Aside the Dismissal is DENIED.

Legal Standard

Under CCP section 473(b), the Court may relieve a party from a voluntary dismissal taken against it through its mistake, inadvertence, surprise, or excusable neglect. (Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.) This subdivision has mandatory and discretionary components. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25.) The mandatory component only reaches those dismissals which occur through failure to oppose a dismissal motion, viz., those dismissals which are procedurally equivalent to a default. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.)

CCP 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).) CCP 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 … 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 to set aside the dismissal of his case under CCP section 473(b), arguing that that due to his co-Plaintiffs’ counsel Vahagn Koshkaryan’s mistake and excusable neglect, the entire case was dismissed. Koshkaryan only intended to dismiss his own clients’ case, but inadvertently requested a dismissal of the entire action.

The motion is timely filed under C.C.P. § 473(b). The action was dismissed on May 19, 2022. This Motion to Set Aside the Dismissal was filed on June 30, 2022, within six months after dismissal was entered and within a reasonable time.

However, Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of co-Plaintiffs’ counsel. But Plaintiff has failed to show how CCP section 473(b) applies in this case. The statute’s discretionary prong only applies to dismissals taken against Plaintiff through his own mistake, inadvertence, surprise, or excusable neglect. Here, the mistake was that of co-counsel’s. Moreover, because the mandatory prong only reaches those dismissals which occur through failure to oppose a dismissal motion -- e.g., those dismissals which are procedurally equivalent to a default -- that prong is of no help to Plaintiff. Yet, even if it were, it only applies to vacate a dismissal entered against the client of the attorney who attests to his or her mistake, inadvertence, surprise, or neglect. Here, Plaintiff’s counsel is not the one who made the mistake; it is co-plaintiffs’ counsel who has made the mistake, resulting in dismissal of Plaintiff’s case.

Because there is no procedure cited in Plaintiff’s motion which provides grounds for relief from the order of dismissal given these circumstances, the motion under CCP section 473(b) is denied.

Conclusion

Accordingly, Plaintiff’s Motion to Set Aside the Dismissal is DENIED.

Moving party is ordered to give notice.