Judge Timothy B. Taylor, Case 37-2021-00003085-CU-PA-CTL 2023-09-15 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00003085-CU-PA-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2021-00003085-CU-PA-CTL ALI VS MENDEZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/08/2023

Tentative Ruling on Motion to Set Aside Sanctions Order and Order Striking Answer Ali v. Mendez, Case No. 2021-03085 Sept. 15, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a personal injury case arising out of a traffic accident on February 1, 2019 at the intersection of Orange Avenue and Menlo Avenue in San Diego. The Judicial Council form complaint was filed in early 2021. Plaintiff was not prompt about serving the summons, and the defendants did not answer until late June. ROA 13. This only began the frustration.

The case was set for trial in May of 2022. ROA 35-39. But in February of 2022, the parties sent down a stipulation whereby the trial was re-scheduled for September. ROA 41-44.

Counsel for plaintiff then sought an order allowing him and his firm to withdraw from further representation in this case. ROA 52-53. This caused the trial to go off calendar. ROA 55. The court ultimately granted the motion and re-set the case for trial. ROA 61-66. Defense counsel (Mr. Dull) was at the hearing where this was done. ROA 63.

When the rescheduled TRC rolled around, plaintiff (now in propria persona) was present, as was defense counsel (Ms. Rudat). The case still was not ready, so the court vacated the trial date and set yet another CMC. ROA 71. When the CMC was called, plaintiff was present but there was no appearance for defendant. ROA 76. The court set and properly noticed an OSC regarding why the answer should not be stricken and an OSC regarding sanctions under CCP section 177.5. ROA 76-80.

When that hearing was called, plaintiff was present but counsel for defendants once again whiffed. ROA 81. The court sanctioned the attorneys of record (Gillard and Parks), and ordered defendants' answer stricken. ROA 81-84.

Presently, defendants' law firm seeks to set aside sanctions orders and the order striking the answer.

ROA 85-88. There is no opposition. The court has reviewed the papers; no further submissions are authorized in connection with this motion.

Calendar No.: Event ID: TENTATIVE RULINGS

2982973 33 CASE NUMBER: CASE TITLE: ALI VS MENDEZ [IMAGED] 37-2021-00003085-CU-PA-CTL 2. Applicable Standards.

Code of Civil Procedure section 473(b) contains provisions for both discretionary and mandatory relief.

Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 484. Defendants specifically invoke the mandatory provision, which provides that 'the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.' Code Civ. Proc. § 473(b). A party seeking relief under section 473 bears the burden of proof.

Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205.

3. Discussion and Ruling.

The unopposed motion for mandatory relief is denied without prejudice.

'[T]he mandatory relief provision applies only to defaults, default judgments, and dismissals.' Huh v. Wang (2007) 158 Cal.App.4th 1406, 1415. 'The plain language of the statute is unambiguous and controlling.' Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App.5th 167, 170.

In this case, the court's June 6, 2023 order was not a default, a default judgment, or a dismissal. Nor has default been entered. Thus, the mandatory relief provision does not apply.

This ruling is without prejudice to defendants renewing their motion based on the discretionary relief provision, if applicable. But in considering whether to file a renewed motion, the current successor firm should consider its mishandling (and that of the predecessor firm) of this case.* The firm should consider why it had no mechanism in place to deal with what appears to have been a revolving door of associates, and no safeguards to insure that important court hearings were not missed. This cost the parties and the court a lot of wasted time and money, and delayed resolution of this simple case.

____________________________ CHAVEZ LEGAL GROUP Mail Service: 11900 North 26th St., Ste. 200 Edinburg, TX 78539 Electronic Service: legal-mail@fredloya.com The current moving papers have the following in the same location: MARTINEZ, DIETERICH & ZARCONE LEGAL GROUP Mail Service: 11900 North 26th St., Ste. 200 Edinburg, TX 78539 Electronic Service: legal-mail@fredloya.com; amano@mdzlegalgroup.law Calendar No.: Event ID: TENTATIVE RULINGS

2982973 33