Judge Steven A. Ellis, Case Number: 22STCV08187, Date: 2024-12-06 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV08187, Date: 2024-12-06 Tentative Ruling

Case Number: 22STCV08187 Hearing Date: December 6, 2024 Dept: 29

Sandoval v. Starbucks Corporation
22STCV08187
Motion to Set Aside Dismissal filed by Plaintiff Andrew Sandoval.

Tentative

The motion is GRANTED.

Background

On March 7, 2022, Plaintiff Andrew Sandoval (Plaintiff) filed a complaint against Defendants Starbucks Corporation, and Does 1 to 50, for premises liability and negligence.

On August 21, 2023, the Court held a final status conference. There were no appearances by either party. On September 5, 2023, the case was called for trial and there were no appearances. As a result, the Court dismissed the complaint filed by Plaintiff pursuant to Code of Civil Procedure section 581(b)(3). (Min. Order, 9/5/23.)

On February 26, 2024, the Court granted Plaintiff’s motion to set aside the dismissal, based on a calendaring error. (Min. Order, 2/26/24.)

Then, on April 9, 2024, the Court held an Order to Show Cause Re: Dismissal and/or Sanctions for Failure to Serve. There was no appearance by counsel for Plaintiff and no service in this case. As a result, the Court again dismissed the complaint without prejudice.

On October 10, 2024, Plaintiff filed the instant motion to set aside the dismissal under Code of Civil Procedure section 473(b). No opposition has been filed.

Legal Standard

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect. This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) The mandatory relief provision does not apply to dismissals for “failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted], and voluntary dismissals entered pursuant to settlement [citations omitted].” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 620.)

Discussion

Here, Plaintiff’s counsel, Robert L. Booker II, declares that following the February 26, 2024 order to set aside the first dismissal, Plaintiff’s counsel conveyed to his paralegal that an Order to Show Cause was set for April 9, 2024. (Booker Decl. ¶ 5.) The paralegal was instructed “to provide notice to Defendants, file the Proof of Service and calendar the hearing of the Order to Show Cause re Monetary Sanctions and/or Dismissal due to failure to Serve. Unfortunately, the hearing date was not calendared, and Plaintiff’s counsel missed the hearing of the OSC that was held on April 9, 2024. Plaintiff’s counsel also failed to provided notice to Defendants.” (Id.) Furthermore, Plaintiff provides evidence this motion was made within a reasonable time because Plaintiff did not learn of this dismissal until after an October 2024 audit. (Id. ¶ 8.)

A calendaring error constitutes excusable neglect. (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980.) Because the date was not calendared, Plaintiff’s counsel was unaware and did not appear at the OSC. Therefore, Plaintiff sufficiently shows that failure to appear was due to excusable neglect.

Therefore, the Court grants the motion to set aside the dismissal.

When a motion is granted under section 473, the Court may (among other things) order that the “offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.” (Code Civ. Proc., § 473, subd (c)(1)(B).)

The Court exercises its discretion to order attorney Robert L. Booker II, Esq., to pay $250 to the State Bar Client Security Fund by January 6, 2025.

Conclusion

The Court GRANTS Plaintiff Andrew Sandoval’s motion to set aside the dismissal.

The Court ORDERS that the dismissal entered on April 9, 2024, is SET ASIDE.

The Court ORDERS attorney Robert L. Booker II, Esq., to pay $250 to the State Bar Client Security Fund by January 6, 2025.

The Court ORDERS attorney Robert L. Booker II, Esq., to file proof of payment of $250 to the State Bar Client Security Fund by January 21, 2025.

The Court SETS an Order to Show Cause re Why the Court Should Not Impose Monetary Sanctions on Plaintiff and/or Plaintiff’s Counsel in an Amount Up To $500 For Failure to Serve Defendants for February __, 2025, at 8:30 a.m. in Department 29 of the Spring Street Courthouse.

The Court SETS a Trial Setting Conference for February __, 2025, at 8:30 a.m. in Department 29 of the Spring Street Courthouse.

Moving Party is ORDERED to give notice.