Judge: Steven A. Ellis, Case: 19STCV37402, Date: 2024-06-05 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: 19STCV37402    Hearing Date: June 5, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Alden Monterroso.

Tentative

The motion is denied.

Background

On October 17, 2019, Alden Monterroso (“Plaintiff”) filed a complaint against Jorge Mendoza, Erika Orellana, and Does 1 through 100, asserting one cause of action for general negligence arising out of a motor vehicle accident at or near the intersection of Rodeo Road and Crenshaw Boulevard.  The complaint identifies the date of the accident as October 18, 2019, which appears to be a typographical error, as it is one day after the date the complaint was filed.

No defendant has appeared.  No proof of service has been filed.

Plaintiff did not appear at the Final Status Conference on April 1, 2021.

Plaintiff did not appear at trial on April 15, 2021.  Based upon Plaintiff’s failure to appear at trial, the Court dismissed the entire action without prejudice.

On April 14, 2022, Plaintiff filed a motion to set aside the dismissal.  The motion was placed off calendar when Plaintiff failed to appear at the hearing on June 29, 2022.

On March 20, 2023, Plaintiff filed a second motion to set aside the dismissal.  The motion was placed off calendar when Plaintiff failed to appear at the hearing on June 2, 2023.

On June 13, 2023, Plaintiff filed this third motion to set aside the dismissal. No opposition has been filed.

Legal Standard

Code of Civil Procedure section 473, subdivision (b), provides for mandatory and discretionary relief from dismissal. “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 through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Where such an application for discretionary relief is made, the motion shall be accompanied by a copy of the answer or pleading proposed to be filed, or the application will not be granted. (Id.) The court must grant relief from dismissal where the application is accompanied by an attorney affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. (Id.) In either case, the application must be made within a reasonable time, and in no case exceeding six months after the judgment. (Id.)

In addition, and separately, even when there is no statutory basis to set aside a default or dismissal, courts have “the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake.”  (Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97; see also, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982.)

“Extrinsic fraud” generally involves some act that kept the party seeking relief “in ignorance of the action or proceeding” or “fraudulently prevented” the party “from presenting his claim or defense.”  (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471; see also, e.g., Bae, supra, 245 Cal.App.4th at p. 97.) 

“Extrinsic mistake” is defined broadly 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; see also, e.g., Rappleyea, supra, 8 Cal.4th at p, 981.)  There need not necessarily be a mistake “in the strict sense.”  (Park, supra, 27 Cal.3d at p. 342.)  But 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 mistakes relate to the merits of the case, such that granting relief would improperly 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.)

Courts apply a stringent, three-part test for equitable relief pursuant to the inherent authority of the court.  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; 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶ 5:435.)

Discussion

Plaintiff requests the Court set aside the order dismissing the action (dated April 15, 2021) based on the illness of the former counsel handling the case.  (Prussak Decl., ¶¶ 5-7.)

Relief under Code of Civil Procedure section 473 must be requested within six months. Here, the motion was filed more than two years after the dismissal. Accordingly, relief is not available under section 473.

Beyond six months, the only relief that is available is equitable relief pursuant to the inherent authority of the Court.  But Plaintiff has not made the showing required for equitable relief under the case law.  Among other things, Plaintiff has not shown diligence in seeking relief; according to counsel’s declaration – which was signed in February 2022 – new counsel was aware of the inability of former counsel to handle this case by late 2021 or early 2022.  Why Plaintiff then missed two hearings on the prior motions seeking relief from default (in June 2022 and June 2023) and then filed this motion in June 2023 is not explained.

Plaintiff has not made a sufficient showing for an order granting relief pursuant to its inherent authority.

Accordingly, the motion is denied.

Conclusion

The Court DENIES Plaintiff’s motion to set aside dismissal.

Moving party to give notice.