Judge: Theresa M. Traber, Case: 21STCP01557, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCP01557    Hearing Date: March 2, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 2, 2023                        TRIAL DATE: NOT SET

CASE:                         Cynthia Knoblock v. Allstate Northbrook Indemnity Co.

CASE NO.:                 21STCP01557           

MOTION TO SET ASIDE DISMISSAL

MOVING PARTY:               Petitioner Cynthia Knoblock

RESPONDING PARTY(S): Respondent Allstate Northbrook Indemnity Co.

CASE HISTORY:

·         05/13/21: Petition filed.

·         09/13/22: Request for Dismissal granted.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This was an action arising out of an underinsured motorist claim. Petitioner sought a court order appointing an arbitrator to adjudicate the underlying dispute.

Petitioner moves to set aside her dismissal of the Petition and to reopen this case to allow Petitioner to litigate the issue of fees and costs.

TENTATIVE RULING:

            Petitioner’s Motion to Set Aside Dismissal is GRANTED.

            Petitioner is to file her memorandum of costs within 10 days of this order. Any motion for fees and costs, or to tax costs, by either party, shall be filed within 30 days of the date of this order.

DISCUSSION:

Petitioner moves to set aside her dismissal of the Petition and to reopen this case to allow Petitioner to litigate the issue of fees and costs.

            Petitioner brings this motion under the discretionary provision of 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).) “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.) “Surprise” means “‘some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ ” (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.)

            Petitioner argues that the dismissal of this action should be set aside for surprise, based on the unexpected death of the parties’ agreed-upon arbitrator before all remaining disputes could be resolved. It is undisputed that Petitioner dismissed this action on September 13, 2022. It is also undisputed that the parties had selected an arbitrator, Hon. Judith Chirlin (Ret.), to resolve the underlying dispute. (See, e.g., Declaration of John P. Rosenberg ISO Mot. ¶ 4.) Petitioner states that Respondent subsequently offered to settle Petitioner’s underinsured motorist claims, but that a dispute arose between them as to the right to attorney’s fees and costs. (Id. ¶ 7.) It is undisputed that Judge Chirlin passed away before this matter could be arbitrated. (Rosenberg Decl. ¶ 9.) The parties have subsequently been unable to agree on another arbitrator to resolve the remaining disputes. (Id.)

            In opposition, Respondent argues that the dismissal should not be set aside because the proposed motion for an award of fees or costs under section 998 is without merit. The Court is not inclined to address the merits of a planned motion for fees and costs which has not yet been filed. Respondent makes no effort to address the merits of Petitioner’s argument under section 473(b).

            In view of the undisputed facts, including the sudden death of the mutually-agreed-upon arbitrator whose existence was the reason for the dismissal of this action, the Court finds that Petitioner has adequately demonstrated surprise justifying relief under section 473(b).

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CONCLUSION:

            Accordingly, Petitioner’s Motion to Set Aside Dismissal is GRANTED.

            Petitioner is to file her memorandum of costs within 10 days of this order. Any motion for fees and costs, or to tax costs, by either party, shall be filed within 30 days of the date of this order.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 2, 2023                         ___________________________________

                                                                                    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.