Judge: Stephen P. Pfahler, Case: 21CHCV00803, Date: 2022-08-18 Tentative Ruling

Case Number: 21CHCV00803    Hearing Date: August 18, 2022    Dept: F49

Dept. F-49

Date: 8-18-22

Case #21CHCV00803

VACATE DISMISSAL

MOVING PARTY: Plaintiff, Brando Neville

RESPONDING PARTY: Defendant, Newhall School District, et al.

RELIEF REQUESTED

Motion to Vacate the Dismissal of the Action

SUMMARY OF ACTION

Plaintiff Brando Neville is/was a student within the Newhall School District. During the 2018-2019 school year, Brando was allegedly bullied by a fellow student on campus. Although complaints were made to school principal, Defendant Chad Rose, no follow-up investigation occurred. Brando was later placed in the same remote learning group with said bully, and upon his return to Stevenson Ranch Elementary School in September 2021, in-person bullying resumed. Plaintiff alleges even after the numerous complaints, district compliance officer, defendant Amanda Montemayor, only completed the investigation on October 15, 2021.

On October 13 and October 22, 2021, Patrick Neville filed a complaint, and first amended complaint for Negligence on behalf of Brando Neville. The court appointed Patrick Neville guardian ad litem on October 19, 2021.

On February 16, 2022, the court sustained the demurrer to the first amended complaint with leave to amend. On March 28, 2022, Plaintiff in pro per filed a second amended complaint for “Negligence, Fraudulent Misrepresentation, Intentional Infliction of Emotional Distress.” The second amended complaint also added new defendant Jeffrey Pelzel.

On May 31, 2022, the court sustained the unopposed demurrer to the second amended complaint with leave to amend. At the concurrently set OSC re: Sanctions Against the Plaintiff for Failure to Appear on April 22, 2022, the court again noted the second lack of Plaintiff’s appearance, and dismissed the entire action.[1] All future dates were vacated.

RULING: Granted.

Plaintiff Brando Neville moves to vacate the May 31, 2022 dismissal on grounds of attorney mistake, inadvertence, and/or excusable neglect. Defendants Newhall School District, Chad Rose, Timothy Lankford, Amanda Montemayor, and Jeffrey Pelzel oppose the motion on grounds of an insufficient showing of mistake, inadvertence, or excusable neglect. Plaintiff in reply reiterates the excusable neglect standard.

Code of Civil Procedure section 473 subdivision (b) provides in 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.”

The court dismissed the action on May 31, 2022, and the subject motion was filed on June 3, 2022, which is within 180 days of the default entry dates. The motion is therefore timely. (Ibid.)

“[A] trial court is obligated to set aside a default, default judgment, or dismissal if the motion for mandatory relief (1) is filed within six months of the entry of judgment, (2) ‘is in proper form,’ (3) is accompanied by the attorney affidavit of fault, and (4) demonstrates that the default or dismissal was in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.’” (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 443.) Defendants in opposition, at least in part, argue for the application of the discretionary standard. Nevertheless, given the substitution of counsel on May 19, 2022—preceding the May 31, 2022, dismissal of the action—the court finds the attorney standard applicable.

Counsel states that a stipulation sustaining the demurrer with leave to amend was submitted to the court, which would place the demurrer off-calendar. Because counsel believed no appearance for the demurrer would be necessary, counsel elected not to appear.

The court acknowledges the May 26, 2022 filed stipulation, which was rejected. The OSC re: Failure to Appear, however, was specifically set following the April 22, 2022 Case Management Conference, with Defendant ordered to provide notice. The stipulation lacks any reference to the OSC. The declaration of counsel also lacks specific explanation for the missed appearance on the OSC, and otherwise represents no denial of notice of the OSC. Defendants in opposition specifically challenge this failure to “check the docket.” Counsel in reply later admits to the lack of awareness of the second hearing on the same date.

Notwithstanding this gaffe, the court accepts the implicit representation in the motion and declaration of counsel to the belief that all hearings would be vacated, and/or the later admission of fault to the lack of awareness of the second hearing. The court therefore accepts the arguments and grants the motion to vacate in order to reflect the public policy principles of allowing presentation of the case and adjudication on the merits.

The court however acknowledges the right of Defendants to claim expenses incurred for the non-appearance at the May 31, 2022 hearing and instant motion. The court therefore awards the requested $350 in attorney fees joint and several against both Plaintiff and counsel of record. (Code Civ. Proc., § 473, subd. (c)(1)(A).) Relief is not conditioned on payment of the fees. (Code Civ. Proc., § 473, subd. (c)(2).) Fees payable within 30 days.

Plaintiff to file a third amended complaint within 30 days of this order. The court directs Plaintiff to the May 31, 2022 order sustaining the demurrer regarding the scope of leave to amend. Because the court has now twice sustained demurrers with leave to amend, the third amended complaint will also be subject to new amendment limit guidelines. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).)

 In case of failure to timely file the amended pleading, Defendants may appear ex parte for a second dismissal of the action.

Plaintiff to give notice.