Judge: Serena R. Murillo, Case: 20STCV39713, Date: 2023-02-24 Tentative Ruling

Case Number: 20STCV39713    Hearing Date: February 24, 2023    Dept: 29

Paulo Sandoval v. Charles Sidney Stephens

 

Friday, February 24, 2023 

 

 

CASE NUMBER: 20STCV39713

 

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Motion to Set Aside Dismissal and for Leave to File a First Amended Complaint filed by Plaintiff Paulo Sandoval

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Background 

On October 15, 2020, Plaintiff Paulo Sandoval filed a complaint for motor vehicle and general negligence against Defendant Charles Sidney Stephens, stemming from a vehicle collision.

On December 12, 2022, the Court dismissed the entire action without prejudice pursuant to CCP section 581(g) for failure prosecute based on Plaintiff’s failure to provide proof of service.

On February 21, 2023, Plaintiff filed this motion to set aside dismissal and for leave to file a first amended complaint.

Summary

Moving Arguments

Plaintiff’s counsel argues the Court dismissed this matter on December 12, 2022, at approximately 8:30 AM, for failure to prosecute based on Plaintiff’s failure to file proof of service. The record reflects that Plaintiff had submitted a motion to serve via publication at or near the time of dismissal. The process server on this matter attempted numerous services in May and June 2022 which were not successful. Prior to the dismissal, Plaintiff had asked the process server to attempt service one more time. The process server made contact with a person who identified themselves as Defendant’s daughter-in-law. She advised the Defendant had died on February 27, 2022. As such, service upon Defendant will not be possible. However, this information was not relayed to Plaintiff’s counsel until on or about December 12, 2022, at approximately 11:18 AM.

Opposing Arguments

 

None filed.

 

            Reply Arguments

 

None filed.

 

Legal Standard

 

Code of Civil Procedure § 473(b) provides for mandatory and discretionary relief from dismissal.  “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 through his or her mistake, inadvertence, surprise, or excusable neglect.”  CCP §473(b).  Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted.  (Id.)  The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.  (Id.)  In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment.  (Id.) 

 

Discussion

Plaintiff moves for relief from dismissal under CCP section 473(b) and argues the Court dismissed this matter on December 12, 2022, at approximately 8:30 AM, for failure to prosecute based on Plaintiff’s failure to file proof of service. The record reflects that Plaintiff had submitted a motion to serve via publication at or near the time of dismissal. The process server on this matter attempted numerous services in May and June 2022, which were not successful. Prior to the dismissal, Plaintiff had asked the process server to attempt service one more time. The process server made contact with a person who identified themselves as Defendant’s daughter-in-law. She advised the Defendant had died on February 27, 2022. As such, service upon Defendant will not be possible. However, this information was not relayed to Plaintiff’s counsel until on or about December 12, 2022, at approximately 11:18 AM.

Plaintiff cannot obtain relief under the mandatory provisions of Code of Civil Procedure section 473(b) where an action is dismissed for failure to prosecute.  “Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion ‘the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted] and voluntary dismissals entered pursuant to settlement [citations omitted].”  (Leader v. Health Industries of America Inc. (2001) 89 Cal.App.4th 603, 620.) 

 

In Graham v. Beers (1994) 30 Cal.App.4th 1656, 1658, the Court stated:

 

An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney's mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently prosecute the action under section 583.410? No. We conclude that the mandatory language of section 473 does not apply to the discretionary dismissal statutes. 

 

After the trial court dismissed this action for failure to prosecute, it properly refused to vacate the judgment of dismissal in response to a motion brought pursuant to section 473. 

 

Although “[t]he purpose of the mandatory relief provision is to relieve the client of the burden caused by the attorney’s error, impose a burden on the attorney instead, and avoid additional malpractice litigation” (Matera v. McLeod (2006) 145 Cal.App. 44, 63 [reversing trial court’s denial of 473, subdivision (b), motion for relief from default judgment that was entered as a terminating sanction]), courts have construed the mandatory relief provision of section 473, subdivision (b), not to apply to discretionary dismissals, as “section 473 in effect [would] nearly nullif[y] the discretionary dismissal statutes, as few dismissals entered thereunder would ever assuredly be final” (Peltier v. McCloud River R.R. Co. (1995) 34 Cal.App.4th 1809, 1816.)  

 

Here, the mandatory provision of section 473 is unavailable because the Court dismissed the action for Plaintiff’s failure to prosecute.  The discretionary provision of section 473 is also unavailable because Plaintiff has failed to: (1) show the neglect at issue was “excusable,” and (2) make the motion within “a reasonable time.”  A showing of diligence is required when seeking discretionary relief.  Here, counsel for Plaintiff admits he found out Defendant had died on December 12, 2022, however, the motion was filed on February 21, 2023, and counsel has not explained why he waited over two months to file this motion. Next, counsel has not explained how it was excusable neglect not to serve Defendant for two years since the filing of the complaint. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default or dismissal.  (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Counsel states that the record shows that 8 attempts were made to serve Defendant from May 29, 2022 through June 17, 2022. However, in the two years and almost two months since the complaint was filed in this case, Plaintiff’s only attempts to serve Defendant were in this period of 19 days. If Plaintiff diligently pursued this case, he would have found out that Defendant had died in February of 2022 much sooner. This is evidenced by the fact that Plaintiff asked the process server to try one more time, and that is when it was discovered that Defendant had died in February of 2022. Plaintiff has not explained why he did not try to serve Defendant before or even after June of 2022. Without this explanation, the Court cannot find that there was a reasonable excuse for the dismissal for failure to prosecute.

 

Conclusion

 

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