Judge: Steven A. Ellis, Case: 20STCV39446, Date: 2023-11-03 Tentative Ruling
Case Number: 20STCV39446 Hearing Date: December 7, 2023 Dept: 29
Tentative
Plaintiff’s Motion to Set Aside and Vacate
the Order of Dismissal dated February 16, 2023, is GRANTED.
Pursuant to Code of Civil Procedure section 473,
subdivision (c)(1)(B), Plaintiff’s counsel, Kelly Lawrence Casado, is ORDERED to
pay $250 to the State Bar Client Security Fund within 30 days of this ruling.
Background
On October 14, 2020, Maria Avalos and Alfonso
Avalos Cervantes (“Plaintiffs”) filed a complaint against Los Angeles County
Metropolitan Transportation Authority (“Defendant”) alleging two (2) causes of
action of (1) Motor Vehicle Negligence and (2) General Negligence, arising out
of a vehicle collision that occurred on March 14, 2020.
The matter was set for trial. On the day of
trial, Plaintiffs and their counsel did not appear. The Court dismissed Plaintiffs’ complaint
without prejudice.
On August 16, 2023, Plaintiffs filed
this motion to set aside or vacate the dismissal. Defendant filed its
opposition on October 20, 2023. Defendant filed a supplemental brief on
November 29, 2023. Plaintiffs have not filed a reply.
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).)
Discussion
On February 16,
2023, the Court dismissed this matter without prejudice. Plaintiffs filed this
motion on August 16, 2023, exactly six months later, supported by an attorney
declaration stating that he became ill on the evening before trial with flu-like symptoms, and then he overslept past the hearing
time of 8:30 a.m. on February 16, 2023, due to failure to set an alarm the
following morning. (Declaration of Kelly Lawrence Casado, ¶ 2, 3.) Counsel also states that his clients did not
appear as he had advised them to remain on call. (Id., ¶ 4.)
Notwithstanding the counter-arguments of Defendant, the
Court finds that Plaintiffs have shown that the dismissal was entered based on their
counsel’s mistake, inadvertence, surprise, or excusable neglect. The Court also finds that the motion is timely.
Accordingly, the Court GRANTS the motion to vacate the
order of dismissal.
Pursuant to Code of Civil Procedure section 473,
subdivision (c)(1)(B), the Court exercises its discretion under the circumstances
to direct and ORDER Plaintiff’s counsel, Kelly Lawrence Casado, to pay $250 to
the State Bar Client Security Fund within 30 days of this ruling and to file proof
of payment with the Court within 60 days of this ruling.
Conclusion
Plaintiff’s Motion to Set Aside and Vacate
the Order of Dismissal dated February 16, 2023, is GRANTED.
The Court ORDERS, pursuant to Code of Civil Procedure
section 473, subdivision (c)(1)(B), Plaintiff’s counsel, Kelly Lawrence Casado,
to pay $250 to the State Bar Client Security Fund within 30 days of this ruling.
The Court ORDERS Plaintiff’s counsel, Kelly Lawrence
Casado, to file proof of payment of the $250 to the State Bar Client Security
Fund within 60 days of this ruling.
The Court sets a Trial Setting Conference in
approximately 120 days, on ___________, 2024, at 8:30 am in Department 29 of
the Spring Street Courthouse.
The Court sets an OSC regarding submission of
proof of payment of $250 by Plaintiff’s counsel to the State Bar Client Security
Fund at the same time, on ___________, 2024, at 8:30 am in Department 29 of the
Spring Street Courthouse.
Moving party is ordered to give notice.