Judge: Steven A. Ellis, Case: 18STCV05596, Date: 2023-08-23 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: August 23, 2023    Dept: 29

ENTATIVE

The motion of Plaintiff Charles Alvarez to set aside the dismissal is GRANTED.

Background 

This case has a long and somewhat complicated procedural history, only some of which is summarized here.

The case arises out of a motor vehicle accident that allegedly occurred on November 26, 2016.  

On November 11, 2018, Plaintiffs Charles Alvarez, Jose Luis Flores, and Miguel Carmona filed the complaint in this action against Defendants Aaron Lee Ruskin, Shauna Ruskin, George Favela, and Does 1 through 50. 

On December 13, 2018, Defendants Aaron Lee Ruskin and Jorge Favela (erroneously sued as George Favela) (“Defendants”) filed an answer.  (Defendant Shauna Ruskin subsequently filed an answer, but all claims against her were dismissed.)

When the complaint was filed, attorney Vahagn Koshkaryan represented all three plaintiffs. 

On December 26, 2019, Plaintiff Alvarez (only) changed attorneys.  Barry Fischer substituted in, and Vahagn Koshkaryan substituted out.  On May 8, 2020, Plaintiff Alvarez made another change, replacing Barry Fischer with Behrouz Shafie.

On February 10, 2022, the Court was informed that Plaintiffs Flores and Carmona (only) had settled their claims with Defendants. 

On May 19, 2022, Vahagn Koshkaryan, counsel for Plaintiffs Carmona and Flores, filed a request for dismissal.  Counsel mistakenly checked the wrong box on the court form and indicated (wrongly) that the dismissal was for all parties and all causes of action.  The clerk entered the dismissal of the entire action on May 23, 2022.

On June 3, 2022, the Court noted in a minute order that “the case has been dismissed in its entirety … pursuant to Request for dismissal filed on 5/19/22.”

On June 30, 2022, Plaintiff Alvarez filed a motion under Code of Civil Procedure section 473, subdivision (b), to set aside the dismissal of his claims and to reset the case for a Final Status Conference and Trial.  The hearing on the motion was scheduled for January 5, 2023.  Alvarez filed an ex parte application on July 5, 2022, to advance the hearing, but the Court denied the application.

On November 30, 2022, Plaintiff Alvarez changed counsel again, bringing in current counsel Vladimir Shagramanov.

On January 5, 2023, the Court denied the motion of Plaintiff Alvarez to set aside the dismissal.  The Court reasoned that Code of Civil Procedure section 473, subdivision (b), did not apply, as the mistake was due to the error of counsel for other parties, not counsel for Plaintiff Alvarez.  The request to set aside the default based on equitable grounds was denied because the request was not set forth in the moving papers.

On February 21, 2023, Plaintiff Alvarez filed this motion to set aside the dismissal on equitable grounds.  Defendants filed their opposition and objections to evidence on August 10.  Plaintiff Alvarez filed a reply on August 14.

Evidentiary Objections

Defendants have filed Objections Nos. 1 through 18 to Plaintiff’s evidence. 

The Court SUSTAINS Objections Nos. 2-9, and 11.

The Court OVERRULES Objections Nos. 1, 10, and 12-18.

Legal Standard

Code of Civil Procedure section 473, subdivision (b), provides the Court with statutory authority to grant relief to a party when “a judgment, dismissal, order, or other proceeding [has been] taken against him or her” as a result of the “mistake, inadvertence, surprise, or excusable neglect” of the party or the party’s attorney.  Such relief must be sought within six months.  (Code Civ. Proc., § 473, subd. (b).)

Beyond six months, statutory relief is not available, but a court still has the inherent power to grant relief on equitable grounds.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 5:435.)  Because of the strong public policy in favor of finality of judgments, this equitable power may be exercised only in “exceptional circumstances.”  (Rappleyea, supra, 8 Cal.4th at p. 982.)

Code of Civil Procedure section 473, subdivision (d), provides that when a judgment or order has been entered as a result of a clerical error, the Court may correct or set aside the erroneous judgment or order.

Discussion

Plaintiff Alvarez seeks to set aside the dismissal entered by the clerk on May 23, 2022, based upon the request filed on May 19, 2022.  Plaintiff asserts two bases for this relief: (a) equitable grounds under the Court’s inherent power; or, in the alternative, (b) the Court’s statutory authority under Code of Civil Procedure section 473, subdivision (d).

Beginning with Alvarez’s primary argument for equitable relief, the California Supreme Court has explained:

After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable.  …  One ground for equitable relief is extrinsic mistake – a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.

(Rappleyea, supra, 8 Cal.4th at p. 981.)  The term “extrinsic mistake” is “given a broad meaning” and encompasses “almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.”  (In re Marriage of Park (1980) 27 Cal.3d 337, 342.)  There need not necessarily be a mistake “in the strict sense.”  (Ibid.)  “‘Extrinsic mistake is found when …  a mistake led a court to do what it never intended.’”  (Rappleyea, supra, 8 Cal.4th at p. 981 [quoting Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472].) 

Courts generally conclude that a mistake is intrinsic, and not extrinsic, when “a party’s own negligence allows the … mistake to occur.”  (Kramer v. Traditional Escrow (2020) 56 Cal.App.5th 13, 29.)  Intrinsic makes relate to the merits of the case, such that granting relief would allow a party to relitigate the case.  (Kulchar, supra, 1 Cal. 3d at pp. 472-73.)  Examples of intrinsic mistakes, or intrinsic fraud, are perjury, failing to complete discovery, or failing to prepare adequately for trial.  (Ibid.; 1 Weil & Brown, supra, ¶ 5:439.)

Courts generally apply a stringent, three-part test for equitable relief beyond the six-month time limit in Code of Civil Procedure section 473, subdivision (b).  A party seeking relief on equitable grounds must show (1) “a satisfactory excuse”; (2) “a meritorious case”; and (3) "diligence in seeking” relief.  (Rappleyea, supra, 8 Cal.4th at p. 982; see also, e.g., Kramer, supra, 56 Cal.App.5th at p. 29.) 

Here, Plaintiff Alvarez has made a sufficient showing for equitable relief. 

First, Alvarez plainly has a satisfactory excuse.  The dismissal was entered based entirely on the mistake of another party’s lawyer: attorney Koshkaryan did not represent Alvarez at the time that Koshkaryan purported to file a request for dismissal on Alvarez’s behalf.  (Koshkaryan Decl., ¶¶ 2-5; Shafie Decl., ¶¶ 2-6; Alvarez Decl., ¶ 5.)  There was no fault or negligence by Alvarez or his attorney.  Koshkaryan’s mistake, if not remedied, would “unfairly cost a party a hearing on the merits.”  (Rappleyea, supra, 8 Cal.4th at p. 981.) 

Second, Alvarez has shown that there is merit in his case.  Alvarez has stated under oath that at the time of the accident, he was a passenger in a car driven by Defendant Jorge Favella and owned by Defendant Aaron Ruskin; Favella was under the influence of alcohol and speeding when the accident occurred, and Alvarez sustained severe injuries as a result of the accident.  (Alvarez Decl., ¶¶ 8-19; see also Shagramanov Decl., ¶¶ 9-10; Rappleyea, supra, 8 Cal.4th at p. 983 [considering attorney’s declaration regarding merit of case].)

Third, Alvarez has been diligent.  He brought his first motion (under section 473, subdivision (b)) less than one month after the Court referred to the dismissal of the action in a minute order, and he brought this motion (supported by substantial evidence) within approximately six weeks of the Court’s ruling denying the first motion.

The Court has considered Defendants’ arguments about prejudice and finds that the unfair prejudice to Alvarez that would result from denying this motion and upholding an unauthorized dismissal filed by an attorney who did not represent Alvarez far outweighs any unfair prejudice to Defendants that could result from a decision granting this motion.  Even if the motion is granted, Defendants will still be able to defend on the merits, and they have not identified any substantial unfair prejudice that would suffer from doing so now, rather than fourteen months ago.

Accordingly, Plaintiff Alvarez’s motion is granted on equitable grounds.  As a result, the Court need not, and does not, reach the question of whether Alvarez is entitled to relief under Code of Civil Procedure section 473, subdivision (d).

Conclusion

The Court GRANTS the motion of Plaintiff Alvarez to set aside the order dismissing his claims against Defendants. 

The dismissal with prejudice of all claims by the other plaintiffs (Flores and Carmona) remains undisturbed by this ruling.

The case is restored to active status.  Trial is set for early January 2024.  The Final Status Conference and all deadlines are reset based on the new trial date.

Plaintiff Alvarez to give notice.