Judge: Steven A. Ellis, Case: 20STCV20123, Date: 2024-02-08 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: 20STCV20123    Hearing Date: February 8, 2024    Dept: 29

Motion to Set Aside Dismissal filed by Plaintiff Geovanni Solis.

Tentative

The motion is granted.

Background

On May 27, 2020, Plaintiff Geovanni Solis (“Plaintiff”) filed his complaint against Defendant Martha Lewis (“Defendant”) for the causes of action of (1) Assault, (2) Battery, and (3) Intentional Infliction of Emotional Distress.

The Defendant’s default was entered on November 2, 2020.  Default judgment was never entered, despite several attempts by Plaintiff to submit sufficient default judgment papers and the issuance of numerous OSCs re dismissal for Plaintiff failure to submit a proper default judgment packet.

On December 15, 2022, Plaintiff’s counsel failed to appear at an OSC hearing.  The hearing was continued to January 20, 2023.  On January 20, 2023, Plaintiff’s counsel appeared; the Court reviewed the default papers, identified certain defects, and continued the OSC hearing to March 9, 2023.

On March 9, 2023, Plaintiff’s counsel again failed to appear at the OSC hearing.  The Court dismissed the case without prejudice.

On April 3, 2023, Plaintiff filed this motion to set aside the dismissal.  No opposition has been filed.

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’s counsel states that dismissal occurred because his office miscalendared the hearing date. (Lee Decl., ¶ 8.)

No opposition has been filed.

The Court finds Plaintiff has established the dismissal occurred due to counsel’s mistake, inadvertence, surprise or neglect.  This motion was filed diligently, less than a month after the dismissal.

Therefore, Plaintiff’s motion to set aside the dismissal is GRANTED.  

Conclusion

Plaintiff’s motion to set aside the dismissal is GRANTED.

The Court SETS ASIDE the Order of dismissal dated March 9, 2023.

The Court sets an OSC re dismissal for failure to file a complete and accurate set of default judgment papers for _______________, 2024, at 8:30 am, in Department 29 of the Spring Street Courthouse.

Plaintiff is ordered to give notice.