Judge: Steven A. Ellis, Case: 21STCV02368, Date: 2023-09-29 Tentative Ruling

Case Number: 21STCV02368    Hearing Date: January 3, 2024    Dept: 29

Tentative

Plaintiffs’ motion is GRANTED; the dismissal is set aside.

Background

On January 20, 2021, Nevitt De La Cruz, Elisa De La Cruz, a minor, by and through her Guardian Ad Litem, Alvaro De La Cruz, and Izael De La Cruz, a Minor, by and through his Guardian Ad Litem, Alvaro De La Cruz (“Plaintiffs”) filed a complaint against Eric Dale Montgomery, and Does 1 to 30 alleging three (3) causes of action of (1) Motor Vehicle Negligence and (2) General Negligence, arising out of a vehicle collision that occurred on January 22, 2019.

On January 24, 2023, the Court dismissed Plaintiffs’ complaint without prejudice.

On July 17, 2023, Plaintiffs filed a motion to set aside the dismissal. The hearing for the motion was set for September 29, 2023. The Court posted a tentative ruling granting Plaintiffs’ motion.  When Plaintiffs’ counsel did not appear at the hearing, however, the tentative was withdrawn and the motion was taken off calendar.

On December 6, 2023, Plaintiffs filed this motion to adopt the Court’s issued tentative ruling setting aside the dismissal, or in the alternative, setting 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

On January 24, 2023, the Court dismissed Plaintiffs’ complaint without prejudice. (Lederer Decl., ¶ 5.)

On July 17, 2023, Plaintiffs filed a motion to set aside or vacate the dismissal. (Id., ¶ 6.) The hearing was set for September 29, 2023. (Id.) The motion is timely filed under Code of Civil Procedure section 473, subdivision (b).

Prior to the hearing, the Court posted a tentative ruling granting the motion.  Plaintiffs’ counsel intended to submit on the posted tentative ruling.  (Id., ¶ 9.) Instead of sending the e-mail submitting on the tentative to sscdept29@lacourt.org, however, Plaintiffs’ counsel erroneously sent the email to sscdept2@lacourt.org.  (Id.)  Due to counsel’s belief he submitted on the tentative, he did not appear at the hearing. (Id.)

Plaintiffs now request the tentative from the September 29, 2023 be adopted by this Court. Plaintiffs’ counsel contends that through his own mistake, error, and inadvertence, Plaintiffs sent the email submitting on the tentative to the wrong email address. (Id.)

The Court has considered the evidence and finds that counsel has adequately demonstrated that his failure to appear at the hearing was the result of counsel’s mistake, inadvertence, and excusable neglect within the meaning of Code of Civil Procedure section 473(b).  The Court also finds that this mistake, inadvertence, and excusable neglect was the cause of the Court’s ruling taking the set aside motion off calendar, and that but for this mistake, inadvertence, and excusable neglect, the Court would have granted the motion to set aside aside the dismissal..

Therefore, Plaintiffs’ motion is GRANTED.  The dismissal entered on January 24, 2023, is set aside.  

Conclusion

The Court GRANTS Plaintiffs’ motion and sets aside the dismissal entered on January 24, 2023.

The Court SETS a Trial Setting Conference in approximately 90 days, on April 3, 2024, at 8:30
am, in Department 29 of the Spring Street Courthouse.

Plaintiffs are ordered to give notice.