Judge: Steven A. Ellis, Case: 20STCV34536, Date: 2023-06-29 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: 20STCV34536    Hearing Date: June 29, 2023    Dept: 29

TENTATIVE

Plaintiff’s motion to set aside the order of dismissal is GRANTED pursuant to CCP § 473(b).

Further, because Plaintiff has not filed a proof of service of summons and complaint, the court sets an Order to Show Cause Re: Plaintiff’s failure to file a proof of service of the summons and complaint.

Legal Standard

Code of Civil Procedure § 473(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.”  CCP §473(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.) 

Discussion

The motion is timely filed under C.C.P. § 473(b).  The action was dismissed on August 22, 2022.  This Motion to Set Aside the Dismissal was filed on November 23, 2022, within six months after dismissal was entered.

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion.   (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)   It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.”  (Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.)

Plaintiff moves for relief on the ground that dismissal was entered due to the mistake, inadvertence, or neglect of Plaintiff’s counsel. On August 22, 2022, the Court dismissed the entire action without prejudice pursuant to Code of Civil Procedure Section 581b(4) and for failure to appear, at an Order to Show Cause Re: Dismissal for Failure to Serve; Order to Show Cause Re: why monetary sanctions should not be imposed due to Plaintiff’s failure to file a proof of service of the summons and complaint; & Trial Setting Conference. Counsel for Plaintiff provides a declaration signed under penalty of perjury, attesting that the hearing date was not entered in the calendar. (Panah Decl., ls 8-9.)

Section 473, subd. (b)¿“does not require an explication of reasons as a prerequisite to mandatory relief.¿… [W]hat must be attested to is the mistake, inadvertence, surprise, or neglect—not the reasons for it.” (Martin Potts & Associates, Inc. v. Corsair, LLC¿(2016) 244 Cal.App.4th 432, 438.) “[The] purposes [of §473(b)]¿are advanced as long as mandatory relief is confined to situations in which the attorney, rather than the client, is the cause of the default, default judgment, or dismissal.” (Id.¿at 439.)¿ 

Because Plaintiff’s counsel has sufficiently established mistake, inadvertence or neglect the dismissal must be set aside. 

Conclusion

For the foregoing reasons, the motion to set aside the order of dismissal is GRANTED pursuant to CCP § 473(b).

Further, because Plaintiff has not filed a proof of service of summons and complaint, the court sets an Order to Show Cause Re:Plaintiff’s failure to file a proof of service of the summons and complaint.

The Court Clerk will give notice. 

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.