Judge Steven A. Ellis, Case Number: 21STCV05526, Date: 2023-10-03 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV05526, Date: 2023-10-03 Tentative Ruling

Case Number: 21STCV05526 Hearing Date: April 10, 2024 Dept: 29

Motion for Reconsideration filed by Plaintiff Robert Joiner.

Tentative

The motion is denied.

Background

On February 11, 2021, Plaintiff Robert Joiner (“Plaintiff”) filed a complaint against Defendant Terrence Lloyd Hutchinson (“Defendant”), alleging a cause of action for negligence, stemming from a motor vehicle collision that occurred on February 11, 2019, wherein Plaintiff sustained injuries due to Defendant’s conduct.

On August 11, 2022, the Court dismissed the entire action without prejudice pursuant to Code of Civil Procedure § 581(b)(3), when Plaintiff did not appear for Non-Jury Trial.

On August 22, 2023, Plaintiff filed the instant motion seeking to set aside the dismissal pursuant to Code of Civil Procedure § 473(b) and seeking reconsideration of the dismissal pursuant to Code of Civil Procedure § 1008.

Legal Standard

Under Code of Civil Procedure § 1008 (a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

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.” Code of Civil Procedure § 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.)

““Apart from any statute, courts have the inherent authority to vacate a default and default judgment on equitable grounds such as extrinsic fraud or extrinsic mistake. “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’ ” In contrast, the term “extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. [Citations.] ‘Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended....’ ” ” (Bae v. T.D. Service Co. (2016) 245 Cal.App.4th 89, 97-98, citations omitted; accord Rappleyea, supra, at pg. 981 [“After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable”].)

Further, the Bae court held that “A party may seek equitable relief from a default and default judgment by filing a motion in the pertinent action or initiating an independent action. ‘[A] motion brought to do so may be made on such ground even though the statutory period [for relief under Code of Civil Procedure section 473, subdivision (b) ] has run.’ Because a motion for equitable relief is ‘direct,’ rather than ‘collateral,’ extrinsic fraud or mistake may be demonstrated by evidence not included in the judgment roll or record relating to the judgment.” (Bae, supra, at pg. 98, citations omitted.)

“[R]elief under the doctrine of extrinsic mistake is subject to a “stringent three-part formula. “ ‘[T]o set aside a [default] judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second [ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once. . .discovered.’ ” ” (Bae, supra, at pg. 100, citations omitted; see also Rappleyea, supra, at pg. 982 [equitable relief should be granted in only exceptional circumstances].)

Discussion

At the October 3, 2023, hearing, this Court denied Plaintiff’s motion as to Code of Civil Procedure sections 473 and 1008. However, the Court continued to allow Plaintiff time to provide a supplemental briefing as to setting aside the dismissal on equitable grounds.

This motion has been continued four times: on October 3, 2023, on November 20, 2023, on January 19, 2024, and on February 9, 2024.

No supplemental briefing has been filed with the Court.

Therefore, the Court DENIES Plaintiff’s motion for reconsideration.

Conclusion

Accordingly, the Court DENIES Plaintiff’s motion for reconsideration.