Judge: Steven A. Ellis, Case: 19STCV19584, Date: 2023-06-22 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: 19STCV19584    Hearing Date: March 4, 2024    Dept: 29

Motion to Set Aside September 13, 2023 Order filed by Plaintiff Aviv Trumer.

Tentative

The motion is denied.

Background

On June 4, 2019 Plaintiff Aviv Trumer (“Plaintiff”) filed a Complaint against Defendant Aroma Coffee and Tea Company (“Defendant”) for premises liability. Defendant answered the complaint on September 27, 2021.

On August 8, 2023, Plaintiff moved to continue trial and the discovery deadlines.  Defendant opposed.  On September 13, 2023, the motion came on for hearing.  The Court granted the motion in part, continuing the trial date because of the serious health issues of Plaintiff’s counsel and also extending the expert discovery deadlines. 

The Court denied Plaintiff’s request to extend the deadlines for fact discovery, however, reasoning that case had been at issue for approximately two years and “Plaintiff has had plenty of time to conduct discovery.”  (Minute Order dated September 13, 2023, at p. 3.)  The Court noted that Plaintiff’s lead counsel had experienced health issues in 2021 and again from November 2022 through January 2023 but concluded that Plaintiff:

 “had an adequate opportunity to propound discovery throughout 2022 (until [counsel’s] illness in November 2022) and in 2023 (after [counsel’s] return to the office in early February 2023).  There has been no showing of diligence or any conduct by Defendant interfering with Plaintiff’s ability to conduct whatever discovery Plaintiff believed was necessary to prepare for a trial that was set for September 2023.” 

(Ibid.)

On February 13, 2024, Plaintiff filed a motion to set aside the September 13, 2023 order. Defendant filed its opposition on February 14, 2024.

Legal Standard

“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…” (Code Civ. Pro., §473, subd. (b).)

To qualify for relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.)

“In a motion under section 473 the initial burden is on the moving party to prove excusable neglect by a “preponderance of the evidence. [Citations]”” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 624.) “The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.” (Id. at 625.)

Discussion

Plaintiff seeks to set aside the order of September 13, 2023, and reopen discovery.

First, to the extent that Plaintiff’s motion is for reconsideration of the September 13, 2023 order, it is denied.  Any motion for reconsideration is untimely, and there has been no showing of any new or different fact or law.

Second, the motion under Code of Civil Procedure section 473, subdivision (b), is not timely.  The motion must be “made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken,” but here Plaintiff waited approximately five months, without any explanation or justification.  With trial scheduled for April 8, 2024, such a delay is not reasonable.

Third, on the merits, Plaintiff has not shown a basis for relief under section 473, subdivision (b).  In this motion. Plaintiff’s counsel repeats the same statements made in connection with the motion to continue trial that was heard on September 13.  Plaintiff adds no new facts.  What has changed, of course, is that now Plaintiff seeks relief under section 473, subdivision (b).

Plaintiff’s failure to conduct discovery in this matter is plainly neglect, but relief is available under section 473, subdivision (b), only if that neglect is “excusable.”  “In deciding whether counsel's error is excusable, this court looks to: (1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim. In examining the mistake or neglect, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276 [citations omitted].)

Here, counsel’s neglect is not excusable.  Counsel was not diligent in investigating and pursuing the claim, and the failure to conduct discovery is not the type of error that an otherwise reasonably prudent counsel would make.

The Court finds that Plaintiff has not established the order of the Court on September 13, 2023, was the result of counsel’s mistake, inadvertence, surprise, or excusable neglect. 

Accordingly, for all of these reasons, Plaintiff’s motion is DENIED.  

Conclusion

Plaintiff’s motion to set aside the order of September 13, 2023, is DENIED.

Defendant is ordered to give notice.