Judge: Stephen Morgan, Case: MC027920, Date: 2022-08-30 Tentative Ruling
Case Number: MC027920 Hearing Date: August 30, 2022 Dept: A14
Background
This is a personal injury action. Plaintiff Charles Cooper (“Plaintiff”) alleges he suffered a personal and/or bodily injuries on May 18, 2016 after Defendant Spencer James Frederick (“James”) and Does 6-10 failed to stop their vehicle and collided into the rear of Plaintiff’s vehicle. Plaintiff alleges that Defendant Michael Frederick (“Michael,” collectively “Defendants”) and Does 1 through 5 negligently hired, trained, and/or supervised James and Does 1 through 6 in such a fashion as to cause and/or contribute to the occurrence of the collision.
On April 23, 2018, Plaintiff filed a complaint against Defendants for personal injuries.
On November 30, 2020, Plaintiff filed an amendment to complaint naming Aarush Ramesh Parekh, M.D. as Doe 13.
On June 12, 2018, Defendants filed their answer.
On March 02, 2022, a Final Status Conference (“FSC”) was held. Plaintiff did not appear and the Court continued the FSC to the date of the jury trial, March 11, 2022.
On March 11, 2022, a FSC, Jury Trial, and Order to Show Cause Re: Sanctions for Plaintiff's Failure to Appear on 3/2/2022 was to be held for this action. Plaintiff did not appear. The Court noted that no trial documents had been filed prior to March 11, 2022. The Court ordered that the Complaint filed by Plaintiff on 04/23/2018 was to be dismissed without prejudice.
On August 08, 2022, Plaintiff filed this Notice of Motion to Vacate/Set Aside Dismissal.
On August 17, 2022, Defendants filed their Opposition.
No Reply has been filed.
Analysis
Standard for Motion to Set Aside/Vacate – ¿“ ‘ A motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.’ ” (Burnete¿v. La Casa Dana Apartments¿(2007) 148 Cal.App.4th 1262, 1266.)¿ “Although a trial court has discretion to vacate the entry of a default or subsequent judgment, this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.” (Cruz v.¿Fagor¿America, Inc.¿(2007) 146 Cal.App.4th 488, 495.)¿
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Additionally, the California Supreme Court has held the following:¿¿
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Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]¿¿
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(Elston¿v. City of Turlock¿(1985) 38 Cal.3d 227, 233-34.)¿
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Cal. Code Civ. Proc. § 473(b) permits the Court to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or through his or her mistake, inadvertence, surprise or excusable neglect.”¿(Cal. Code Civ. Proc. § 473(b).) “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.” (Id.)
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A mistake is a basis for relief under Cal. Code Civ. Proc. § 473 when by reason of the mistake a defendant failed to make a timely response.¿ Surprise occurs when a Defendant is unexpectedly placed in a position to his injury without any negligence of his own. (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.)¿Excusable neglect is a basis for relief when the Defendant has shown some reasonable excuse for the default.¿(Id.) Under Cal. Code Civ. Proc. § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court's vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.)
Cal. Code Civ. Proc. § 473(d) provides that the “court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” Under Cal. Code Civ. Proc. § 473(d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”¿ (Ellard¿v. Conway¿(2001) 94 Cal.App.4th 540, 544.)¿ Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service.¿ (Lebel¿v. Mai¿(2012) 210 Cal.App.4th 1154, 1160.)¿
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Application – On March 11, 2022, a jury trial was to be held and Plaintiff did not appear. No trial documents were filed. The Court dismissed the Complaint filed by Plaintiff on 04/23/2022.
The Court notes that this action is almost four (4) years old.
Plaintiff brings this Motion to Set Aside/Vacate the Dismissal and presents that he had a medical emergency on March 11, 2022. Specifically, Plaintiff alleges that he had a sudden slip of two severe bulging discs in the lower back and two bulging discs in the neck that would not go away and caused him to go into an unbearable state of mind-numbing pain, resulting in the need for home care. (Decl. Charles Cooper ¶¶ 3-4.) Plaintiff has submitted a declaration by his home care provider Mary Ann Beasly (“Beasly”) who attended to him on March 11, 2022. Beasly does not provide her background, but states that she: (1) has provided in-home care for Charles Cooper over the past four years; (2) was called at 5:15 am on March 11, 2022 by Plaintiff who demanded immediate assistance; (3) upon arrival, found Plaintiff hunched over in an upside-down “L” shaped position in pain and discombobulated, placed him into a horizontal position and provided his sleep aid; and (4) from 7-10 am on March 11, 2022, Plaintiff was sedated due to treatment. (Decl. Beasly ¶¶ 2-7.) Plaintiff’s motion has a discussion regarding attempts to compromise after the dismissal of the Complaint which the Court finds inapposite.
Defendants present that the test for what constitutes excusable neglect is whether “a reasonably prudent person, under the same or similar circumstances might have made the same error[]” (no citation provided) and that a prudent person in the same or similar circumstances as the Plaintiff would have behaved differently. Specifically, Defendants believe that a question exists as to how often and/or how long Plaintiff had medical issues such as slipped disc; that Plaintiff should have provided further medical information/documentation; and if these issues were ongoing, Plaintiff should have made a contingency plan for contacting the Court or defense counsel in the case of an emergency. Defendants also present that Beasley’s declaration is scant and provides no indication as to her qualifications and/or verification as Plaintiff’s caregiver, the reason for Plaintiff’s pain, the treatment of Plaintiff’s pain, or the type of sedation she provided Plaintiff. Further, Defendants’ Opposition has a section arguing how Plaintiff has disregarded and prolonged the litigation process both through himself and his limited-scope counsel, Ronda Baldwin-Kennedy.
Both parties state that the hearing on March 11, 2022 was an FSC while disregarding the fact that it was also the date of the jury trial. The Court, in its discretion under Cal. Evid. Code § 452 takes judicial notice of its records. (Cal. Evid. Code § 452(d) [judicial notice may be taken “of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”].) The Court’s December 01, 2021 minute order states: “Pursuant to oral stipulation, the Jury Trial scheduled for 12/10/2021 is advanced to this date and continued to 03/11/2022 at 08:30 AM in Department A14 at Michael Antonovich Antelope Valley Courthouse.” Both parties agreed that the jury trial was to take place on March 11, 2022.
“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong¿public¿policy¿in¿favor¿of the¿finality¿of¿judgments¿and only in exceptional circumstances should relief be granted.’¿ [Citations.]” (Rappleyea v. Campbell¿(1994) 8 Cal.4th 975, 981–982.) As mentioned, ante, “Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations “very slight evidence will be required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.]” (Elston¿v. City of Turlock¿(1985) 38 Cal.3d 227, 233-34.) Cal. Code Civ. Proc. § 473 provides that an “[a]pplication 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.” (Cal. Code Civ. Proc. § 473(b) [further restrictions on cases involving real or personal property].) The Court notes that, while its cited cases are in the context of defaults, they are still applicable to the situation at hand as the crux of the cases cited is relief under Cal. Code Civ. Proc. § 473.
Here, Plaintiff has filed his motion within the six-month limit and relief under Cal. Code Civ. Proc. § 473 is available. The Court believes that the slipped discs that Plaintiff suffered on March 11, 2022 are considered “surprise” as Plaintiff was placed in a position of injury, i.e., the dismissal, without negligence of his own. (See 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.) That is, Plaintiff could not predict that on March 11, 2022, he would suffer a medical emergency. While there are some shortcomings to Plaintiff’s motion, particularly whether the slipped discs were an ongoing issue and Beasly’s declaration, “any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston¿v. City of Turlock¿(1985) 38 Cal.3d 227, 233-34 [internal citations omitted].) Thus, doubts must be resolved in favor of the party seeking relief.
However, the dismissal of Plaintiff’s Complaint was not based on his failure to appear at the March 11, 2022 hearing alone. First, the FSC was to be held on March 02, 2022. Plaintiff did not appear. Plaintiff does not explain this failure to appear. On March 02, 2022, no trial documents were filed; thus, Plaintiff was not ready for trial. As mentioned, ante, March 11, 2022 was not only the date of the FSC, but also the date of the jury trial. Cal. Code Civ. Proc. § 581 provides that an action may be dismissed “[b]y the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.” (Cal. code Civ. Proc. § 581(b)(5).) The Court’s dismissal is not only based on Plaintiff’s failure to appear on March 11, 2022, but also (1) Plaintiff’s failure to appear on March 02, 2022, and (2) statutory procedure laid out by the Legislature.
While Plaintiff’s failure to appear on March 11, 2022 may be due to surprise, it is also patent that Plaintiff was not prepared for trial. Plaintiff has only attached his trial brief with this instant motion. Further, Plaintiff fails to explain his failure to appear at the scheduled FSC on March 02, 2022.
Accordingly, the Court DENIES the motion.
Conclusion
Plaintiff Charles Cooper’s Motion to Vacate/Set Aside Dismissal is DENIED.