Judge: Theresa M. Traber, Case: 19STCV12728, Date: 2022-09-20 Tentative Ruling

Case Number: 19STCV12728    Hearing Date: September 20, 2022    Dept: 47

 Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 20, 2022               TRIAL DATE:  March 28, 2022

CASE:                         Ron Hacker v. Henri Levy, et al.

CASE NO.:                 19STCV12728           

MOTION TO SET ASIDE/VACATE DISMISSAL

MOVING PARTY:               Plaintiff Ron Hacker

RESPONDING PARTY(S): No Opposition on eCourt as of 9/16/22

CASE HISTORY:

• 04/12/19: Complaint filed.
• 04/15/19: Amended notice of lis pendens filed.
• 04/16/19: GNP Enterprise, LLC substituted in as Doe 1; Gabriel Perez substituted in as Doe 2 in a caption purporting to identify Doe 1 only.
• 04/18/19: Finance of America Commercial, LLC purportedly substituted in as Doe 1 in a document with a caption purporting to identify Doe 2.
• 04/23/19: Errata filed indicating that Finance of America Commercial, LLC is substituted in as Doe 3.
• 05/03/19: First Amended Complaint filed.
• 06/07/19: Macoy Capital Partners, Inc. substituted in as Doe 10.
• 06/18/19: Exhibits to First Amended Complaint filed with notice of erratum.
• 08/05/19: Judith Sender substituted in as Doe 11; Mitchell Ohlbaum substituted in as Doe 12.
• 10/07/19: Second Amended Complaint filed.
• 06/01/20: Third Amended Complaint filed.
• 07/01/20: Cross-Complaint filed by Gaelle II LLC.
• 07/20/20: Prestige Default Services substituted in as Doe 13.
• 07/20/20: Walmington [sic] Savings Fund Society, FSB, as trustee of Antler Mortgage Trust 2019-RTL1 substituted in as Doe 14.
• 08/10/20: Anca Claudia Horovitz substituted in as Doe 15.
• 08/10/20: Raffi Tal substituted in as Doe 16.
• 08/10/20: Peak Realty Co aka Century 21 Peak substituted in as Doe 17.
• 08/28/20: Dismissal entered as to Anca Claudia Horovitz (Doe 15).
• 09/01/20: Dismissal entered as to Peak Realty Co aka Century 21 Peak (Doe 17).
• 09/24/20: Dismissal entered as to Cross-Complaint by Gaelle II, et al.
• 11/03/21: Judgment entered as to Defendant Adam Rossman.
• 12/13/21: Dismissal entered as to Defendant GNP Enterprise, LLC.
• 12/15/21: Dismissal entered as to Defendant Adam Rossman.
• 12/23/21: Default entered as to Prestige Default Services
• 12/30/21 Judgment entered as to Defendants Henri Levy, 4865 Bakman, LLC, and Gabriel Perez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Plaintiff alleges that he entered into a joint venture to purchase real property with Defendant Henri Levy, which they planned to resell for a profit. Plaintiff alleges that Levy and others clouded title to the property after Levy and Plaintiff purchased it, undermining Plaintiff’s ability to sell it for a profit.

Plaintiff moves to vacate the dismissal of Defendant GNP Enterprises, LLC.

TENTATIVE RULING:

Plaintiff Ron Hacker’s Motion to Set Aside Dismissal of Defendant GNP Enterprises, LLC is DENIED.

DISCUSSION:

Plaintiff moves to vacate the dismissal of Defendant GNP Enterprises, LLC.

Timing

Pursuant to Code of Civil Procedure section 473(b), a motion to set aside/vacate cannot be brought more than six months after the entry of the order at issue and must be made within a “reasonable time.”  The six-month time limit is jurisdictional.  (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970.)  Six months is defined as half a year, or 182 days, for the purposes of this section. (Davis v. Thayer (1980) 113 Cal.App.3d 892, 901-04.)

Plaintiff’s motion to set aside was filed on May 5, 2022. The dismissal of Defendant GNP Enterprises LLC was entered on December 13, 2021. The last date to file this motion was June 13, 2022. Plaintiff’s motion is therefore timely.

Analysis

            Plaintiff moves to set aside the dismissal of Defendant GNP Enterprises LLC under Code of Civil Procedure section 473(a)(1).

//

            Code of Civil Procedure section 473(a)(1) states:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(Code Civ. Proc. § 473(a)(1).) Plaintiff’s reliance on this section is mistaken. Plaintiff is seeking relief from a dismissal with prejudice of this action entered against him as to Defendant GNP. The proper statute under which this motion should have been brought is Code of Civil Procedure section 473(b), which provides in pertinent part:

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…was taken.

(Code Civ. Proc. § 473(b).) As the Court has the power to set aside the dismissal on its own discretion, the Court will construe the motion as a motion to set aside dismissal under this provision and analyze it on those merits.

“The discretionary relief provision of section 473, subdivision (b) applies to any ‘judgment, dismissal, order, or other proceeding.’” (Zamora v. Clayborn Contracting Group, Inc. (2002), 28 Cal.4th 249, 254.) Thus, for example, “the failure of counsel to meet a procedural deadline” is “a proper subject for section 473 relief.” (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193). A party seeking discretionary relief on the ground of attorney error has the burden to demonstrate that the error was excusable, since the attorney’s negligence is imputed to the client. (Zamora, supra, 28 Cal.4th at 258.) “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276; see Zamora, at 258.)

            Plaintiff contends that the dismissal of GNP Enterprises, LLC should be vacated because the dismissal was entered in error. Plaintiff’s counsel states that the dismissal was entered in error by a member of Mr. Quigg’s staff, intending instead to request dismissal of Defendant Rossman pursuant to a settlement agreement. (Declaration of Vincent J. Quigg ISO Mot. ¶ 4.) Plaintiff has not provided any testimony from the staff member responsible for the error. However, based on this evidence, the Court finds that Plaintiff has adequately demonstrated mistake or excusable neglect.

            Plaintiff has not provided a copy of a proposed pleading with this motion. However, as the intended result is merely to reinstate a dismissed Defendant as identified in the operative pleading, the Court finds that this defect is not prejudicial, and will overlook the absence of a proposed pleading.

            What the Court cannot overlook, however, is the complete lack of explanation by Plaintiff as to the delay in bringing this motion. The dismissal was entered on December 13, 2022, but this motion was not filed until May 5, 2022, a full five months later. Even under the extremely liberal standards for relief under section 473, the Court cannot, without some explanation of the mitigating circumstances by Plaintiff, consider a five-month delay to seek relief from dismissal with prejudice of a named party entered due to a clerical error as a “reasonable time.” This lack of explanation is fatal to Plaintiff’s motion.

CONCLUSION

            Plaintiff’s motion to set aside the dismissal of GNP Enterprises LLC is DENIED.

            Moving party to give notice.

IT IS SO ORDERED.

Dated: September 20, 2022                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.