Judge: Steven A. Ellis, Case: BC708793, Date: 2024-01-22 Tentative Ruling
Case Number: BC708793 Hearing Date: January 22, 2024 Dept: 29
Tentative
The motion is DENIED.
Background
On June 5, 2018, Plaintiff Zuly Fabiola
Ospino (“Plaintiff”) filed a complaint against Defendant Reece Wayne Souza, Los
Angeles County Sheriff, and Does 1 through 100.
No defendant ever appeared, and no proof of
service was filed.
On December 5, 2019, there was no appearance at
trial, and the Court dismissed the entire action without prejudice. On June 4,
2020, Plaintiff filed a Motion to Set Aside Dismissal. Per the June 5, 2020
Minute Order, the hearing was continued to October 20, 2020. There was no
appearance by Plaintiff. A second motion was filed on June 1, 2022, but it was
filed in the incorrect Department and was denied without prejudice on June 27,
2022. A third motion was filed on March
20, 2023, but it was filed in a different incorrect Department and taken off
calendar on April 13, 2023.
On April 25, 2023, Plaintiff filed the
instant motion to set aside the dismissal pursuant to Code of Civil Procedure §
473(b).
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.” 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
Plaintiff
contends this matter was timely filed, but due to previous counsel’s illness,
the office was not properly informed of deadlines, which lead to the dismissal.
(Motion, 3:11-13.) Plaintiff seeks relief under Code of Civil Procedure section
473. Plaintiff contends that the Court granted the first motion to set aside
dismissal, however, counsel failed to attend the hearing. (Id., 4:13-15.)
Counsel contends
that this motion was filed and rejected in both Departments 12 and 24, prior to
the motion being filed in Department 29. (Prussak Decl., ¶3.)
Relief under
Code of Civil Procedure section 473 must be requested within six months of the
dismissal. Here, the motion was filed over three years after the dismissal.
Even if the Court recognized the second motion to set aside filed on June 1,
2022, this would be two years after the dismissal was entered.
Plaintiff has
not made a sufficient showing for an order granting relief pursuant to its
inherent authority.
Therefore, the
Court DENIES Plaintiff’s motion to set aside dismissal.
Conclusion
Accordingly, the Court DENIES Plaintiff’s motion to set aside dismissal.