Judge: Stephen I. Goorvitch, Case: 20STCV20862, Date: 2023-01-31 Tentative Ruling

Case Number: 20STCV20862    Hearing Date: January 31, 2023    Dept: 39

Outsource, LLC v. Horizon Communications Technologies, Inc., Case No. 20STCV20862

The Court issued an Order to Show Cause why this case should not be dismissed.  (See Court’s Minute Order, dated August  19, 2022.)  The Court provided notice: “[I]f Plaintiff’s counsel does not provide evidence that its claims have not been discharged in bankruptcy, absent good cause, the Court intends to dismiss this case with prejudice.”  (Ibid.)  The Court also provided notice: “[I]f Plaintiff’s counsel does not appear at the OSC hearing, absent good cause, the Court intends to dismiss this case with prejudice.”  (Ibid.)  The Court held an OSC hearing on January 5, 2023.  Plaintiff’s counsel provided no evidence that his client’s claims were viable, and Plaintiff’s counsel did not appear at the hearing.  (See Court’s Minute Order, dated January 5, 2023.)  Therefore, the Court dismissed this case with prejudice.

Plaintiff’s counsel has filed an ex parte application to set aside the dismissal pursuant to Code of Civil Procedure section 473(b).  Counsel for the third-party claimant, Sunwest Bank, has filed an opposition, and Defendant Horizon Communications Technologies, Inc. (“Horizon”) has joined in the opposition.  Their arguments are meritless. 

First, the opposition argues that section 473(b) required Plaintiff to file “a copy of an answer or other pleading proposed to be filed therein . . . .”  This requirement applies to setting aside defaults, i.e., a situation in which an answer or responsive pleading must be filed in the event default is set aside.  In the instant case, the Court dismissed the case—i.e., the complaint—and it is not necessary for Plaintiff to file another complaint.  

Second, the opposition suggests that the Court lacks authority to set aside its order dismissing this case.  Again, the argument is meritless.  The Court has discretion to “relieve a party or his or her legal representative from a . . . dismissal [or] order . . . taken against him or her through his or her  mistake, inadvertence, surprise, or excusable neglect.”  In the case of an attorney error, upon receipt of a declaration, the Court “shall” vacate a “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.”  The opposition attempts to argue that the dismissal applied to Horizon, not Plaintiff.  This argument is nonsensical.  The Court dismissed Plaintiff’s case against Horizon, i.e., the Court dismissed the complaint as it relates to Horizon.  Regardless, the Court still has discretion to set aside the dismissal and exercises its discretion in favor of doing so. 

Finally, the opposition argues that Plaintiff’s counsel’s declaration does not establish good cause, arguing that the failure to appear was not caused by Plaintiff’s counsel having to care for his elderly father.  The Court disagrees.  The Court reminds opposing counsel that there are no games of “gotcha” in the Los Angeles County Superior Court, and the parties shall endeavor to adhere to the spirit, if not the letter, of the “Guidelines for Civility in Litigation,” which may be found in Chapter Three, Appendix 3.A of the Local Rules. 

Based upon the foregoing, the Court orders as follows:

1.       Plaintiff’s ex parte application is granted.  The Court orders the clerk to set aside the dismissal of Horizon Communications Technologies, Inc. 

2.       The Court discharges the Order to Show Cause re: Default Judgment.

3.       The Court orders the parties to meet-and-confer.  The Court shall hold a case management conference on  February 24, 2023, at 8:30 a.m.  The parties shall file case management conference statements on or before February 17, 2023.