Judge Timothy B. Taylor, Case 37-2021-00041002-CU-BC-CTL 2023-09-15 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00041002-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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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

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00041002-CU-BC-CTL BARTOLOME VS DELGADO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside Dismissal, 08/08/2023

Tentative Rulings on (1) Motion to Set Aside Dismissal and (2) Motions for Attorneys' Fees

Bartolome v. Delgado, Case No. 2021-41002 Sept. 15, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

Plaintiff filed this action for termination of an easement and reformation of a deed in September of 2021.

The dispute centers on her residence at 6302 Division Street in San Diego. She has a dispute with her neighbors regarding an easement plaintiff granted in favor of defendants in 2006. She contends the defendants failed to maintain the easement giving rise to a lawsuit by the City (Case No. 2016-340672).

These were not only lawsuits involving plaintiff. In 2016, the court presided over Bartolome v. America's Servicing Company, Case No. 2016-06861. In that case, plaintiff borrowed money secured by her residence, and then failed to pay the loan back as agreed. She sought a loan modification, and was dissatisfied with the response. She retained counsel, who filed the complaint on March 1, 2016. Shortly thereafter, her lawyer sought leave to withdraw. The court granted the motion and later dismissed the action when plaintiff failed to serve the summons and complaint and failed to appear.

In the present case, defendants answered in November of 2021. ROA 12. The parties later stipulated to the filing of the FAC, adding two parties. ROA 22-23. All four defendants answered the FAC. ROA 31-32. At a continued CMC in July of 2021, the court set the case for trial in June of 2022. ROA 38-42.

On June 9, 2023, the court called the TRC. Both sides appeared through counsel, and plaintiff's counsel informed the court 'that a request for dismissal was filed and in pending in e-file.' The court ordered the case dismissed without prejudice. ROA 48-50.

Plaintiff, having changed counsel, now moves to set aside the dismissal under Code of Civil Procedure section 473(b). ROA 61-65. The motion was originally scheduled for November 17, 2023, but was advanced to today at plaintiff's request. ROA 60, 68-72, 75-76. Also set for today are defendants' motions for attorneys' fees under Civil Code section 1717. ROA 53, 55-58. The court has reviewed the opposition and reply briefing. No further submissions are permitted in connection with these motions.

ROA 77-82.

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3008843 46 CASE NUMBER: CASE TITLE: BARTOLOME VS DELGADO [IMAGED] 37-2021-00041002-CU-BC-CTL 2. Applicable Standards.

A. Code of Civil Procedure section 473(b) contains two distinct provisions for relief from default. The first provision is discretionary and broad in scope: '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.' Code Civ. Proc. § 473(b). It is the moving party's burden to show the requisite mistake, inadvertence, surprise, or excusable neglect. Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.

The second provision is mandatory and covers only default judgments and defaults that will result in entry of judgments: '[T]he 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 sword, 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). The purpose of the mandatory provision is to 'relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.' Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.

B. 'Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees.' Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751. Code of Civil Procedure section 1021 codifies the rule, providing that the measure and mode of attorney compensation is left to the agreement of the parties '[e]xcept as attorney's fees are specifically provided for by statute.' One such statute is Civil Code section 1717, which authorizes an award of 'reasonable attorney's fees' to a prevailing party '[i]n any action on a contract...to enforce that contract' if the contract provides for an award of attorney fees. Civ. Code § 1717(a).

3. Discussion and Rulings.

A. The motion to set aside the dismissal is granted.

'Section 473, subdivision (b) is construed liberally to further the policy of adjudicating legal controversies on the merits.' Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146.

In this case, although plaintiff is not entitled to relief under the mandatory provision, she has made a sufficient showing of 'mistake' in connection with the dismissal of her lawsuit under the discretionary provision. See Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656 (''A mistake of fact is when a person understands the facts to be other than they are[.]''); see also Bice v. Stevens (1958) 160 Cal.App.2d 222, 232-34 (attorney inadvertently moved for dismissal with prejudice though client had not authorized this step). Plaintiff declares her prior attorney misinterpreted her instructions in the days prior to the TRC.* Accordingly, the court will exercise its discretion and set aside the dismissal entered on June 9, 2023. The case is hereby returned to the court's active list.

B. In light of the court's ruling on the motion to set aside the dismissal, the motions for attorneys' fees are denied without prejudice as premature. See P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052 ('[B]efore entry of judgment, there is technically no prevailing party.').

4. CMC.

Counsel are ordered to appear at the hearing to assist the court in re-setting the case for trial.

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3008843 46 CASE NUMBER: CASE TITLE: BARTOLOME VS DELGADO [IMAGED] 37-2021-00041002-CU-BC-CTL ________________________________ *Plaintiff's declaration (ROA 64) does not comply with the requirements of Code of Civil Procedure section 2015.5. Defendants' otherwise vigorous opposition (ROA 79) did not raise this shortcoming.

Accordingly, defendants have waived the defect (which is likely curable in any event). See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.

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